The Antisubordination Eighth Amendment

This Article argues for a constitutional response to one of the worst structural harms of the criminal legal system: the perpetuation of racial subordination. It makes this case by exploring whether the antisubordination principle best associated with the Fourteenth Amendment’s Equal Protection Clause could be applied to Eighth Amendment constitutional interpretation. This principle posits that the Constitution should be read in a way that dismantles the structural harm of caste hierarchy. An antisubordination interpretation of the Eighth Amendment would require courts to balance the depth of the harm of caste perpetuation against the strength of the government’s interest in imposing punishment on an individual. Such a test would lead to the invalidation of punishments that entrench racial hierarchy—absent a compelling government interest in continuing to impose them.

Through an examination of the history, structure, jurisprudence, and theory of the Eighth and Fourteenth Amendments, the Article concludes that an Antisubordination Eighth Amendment is both possible and necessary to address the systemic racism of the criminal legal system. Because criminal punishment perpetuates and entrenches America’s racial caste system, courts must strictly scrutinize punishments that disproportionately impact Black people and other historically subordinated groups.

Table of Contents Show

Introduction

On a Monday in August 2021, D.B. appeared for sentencing in an Ohio court. D.B. had been convicted of twenty-two counts related to her repeated embezzlement of over $238,000 during her twenty-year tenure as a county clerk.[1] D.B. was facing a maximum sentence of sixty years in prison.[2] The court sentenced her to two years of probation.[3]

The very next day, a Tuesday, K.H. appeared for sentencing in the same Ohio court. K.H. had pled guilty to a single count of theft in office, related to her embezzlement of $40,000 during a single year of her career as a high school secretary.[4] K.H. was facing a maximum sentence of three years in prison.[5] The court sentenced her to eighteen months in prison.[6]

Neither D.B. nor K.H. had a prior criminal history.[7] Both were women in their early fifties.[8] I do not need to tell you the race of D.B. or that of K.H. I do not need to tell you, because you already know that D.B. is white and K.H. is Black.[9]

You know the race of these two women without being told because it is now common knowledge that Black and Brown people are treated more harshly in the criminal legal system than similarly situated white people.

This is not news.[10] Studies since the 1970s have consistently shown that Black people receive harsher punishment than white people, particularly if their victims are white.[11] Recent studies confirm this.[12] The U.S. Sentencing Commission reported in 2017 that Black men on average receive sentences 19.1 percent longer than white men convicted of similar crimes.[13] The Virginia State Crime Commission recently acknowledged a greater disparity for convictions involving mandatory minimums, with Black men receiving sentences that were 50 percent longer than similarly situated white men.[14] Black women are sentenced to imprisonment at 1.6 times the rate of white women.[15]

The Supreme Court and society at large have adopted a tolerance for these disparities as “inevitable,”[16] with one commentator lamenting that this “crisis has persisted for so long that it has nearly become an accepted norm.”[17] But what if this did not have to be the case?

This Article argues for a constitutional response to one of the most pernicious structural harms of the criminal legal system: the creation and entrenchment of racial caste.[18] It makes this case by exploring whether the antisubordination principle best associated with the Fourteenth Amendment’s Equal Protection Clause could be applied to Eighth Amendment constitutional interpretation. This principle posits that constitutional interpretation should interrogate the relationship between dominant and subordinate social groups for the purpose of dismantling caste hierarchy, particularly caste hierarchy based on race. Through an examination of the history, structure, jurisprudence, and theory of both Amendments, the Article concludes that an Antisubordination Eighth Amendment is both possible and necessary to address the systemic racism of the criminal legal system. Because criminal punishment perpetuates and entrenches America’s racial caste system, courts must strictly scrutinize punishments that disproportionately impact Black people and other historically subordinated groups.

The Supreme Court has long recognized a connection between the Bill of Rights and the Reconstruction Amendments, laid out famously in footnote four of United States v. Carolene Products Co.[19] The footnote begins with the normative command that courts apply skepticism when reviewing state legislation that impacts enumerated rights.[20] It concludes by suggesting that the courts should similarly apply a “more searching judicial inquiry” when evaluating the constitutionality of legislation reflecting “prejudice against discrete and insular minorities.”[21] Justices and scholars have pointed to footnote four as the genesis for the Supreme Court’s use of strict scrutiny.[22] Often described as “‘strict’ in theory and fatal in fact,”[23] the strict scrutiny standard requires that the Government supply a compelling state interest for the legislation at issue and show that the legislation is narrowly tailored and the least restrictive means to achieve that interest.[24]

While the text of footnote four recommends a heightened judicial review of all legislation impacting fundamental rights, racial minorities, or both, scholars have pointed out that, in practice, strict scrutiny is reserved for certain violations of the First, Fifth, and Fourteenth Amendments.[25] The remaining amendments are subject to specific implementation rules or mediating principles that permit the Court to apply greater deference to state legislatures.[26]

This Article posits that the most glaring omission in the Court’s strict scrutiny jurisprudence is the Eighth Amendment, which prohibits the use of cruel and unusual punishment.[27] Given its inclusion in the Bill of Rights and its impact on racial minorities, the Eighth Amendment falls neatly within footnote four. Yet the Justices do not apply heightened scrutiny to purported violations of the punishment clause. Instead, the Court has been overwhelmingly deferential to state legislatures, upholding all but the most extreme punishments applied against small groups of defendants.

Instead of imposing strict scrutiny, the Court assesses whether a punishment is cruel and unusual under the Eighth Amendment via an implementation rule known as “the evolving standards of decency test.”[28] The test requires two inquiries. First, the Court must determine whether a “national consensus” has developed against a particular punishment, rendering the punishment “unusual.”[29] Second, the Justices must draw on their independent judgment to determine if the punishment is “cruel” by considering the fit between the punishment and its penological justifications.[30]

In a previous work, I critiqued the evolving standards of decency test, concluding that it has made for a feckless punishment clause.[31] In practice, the test has invalidated only a few extreme sentences for outliers.[32] For example, the test has ended the death penalty for individuals with intellectual disability,[33] those suffering from insanity at the time of their executions,[34] and those under eighteen at the time of their crimes,[35] and has limited the imposition of life without parole on children.[36] It has also barred the death penalty for certain non-homicide crimes, including rape of both adults[37] and children,[38] along with some types of felony murder.[39] These rulings have impacted only a tiny percentage of criminal sentences.[40]

The test has had a far less significant role in assessing the overwhelming majority of criminal punishments, including those of life without parole for adults. For these cases, the Court grants deference to all but the “grossly disproportionate”[41] and has stated a “reluctance to review legislatively mandated terms of imprisonment.”[42] As a result, most noncapital sentences remain effectively beyond the purview of the Eighth Amendment.

More critically, the Court’s Eighth Amendment jurisprudence has failed to address the structural harms of state punishment, particularly its role in entrenching racial caste. In McCleskey v. Kemp, the Court infamously found that racial disparities in capital sentencing did not violate the Eighth or Fourteenth Amendments.[43] The Court rejected the Eighth Amendment claim in part because it “throws into serious question the principles that underlie [the] entire criminal justice system”—a concern the dissenters criticized as “a fear of too much justice.”[44]

This Article posits that these structural harms need not fall outside the protection of the Eighth Amendment. Instead, another view of Eighth Amendment interpretation—one inspired by Fourteenth Amendment theory and jurisprudence—is possible.

Since the 1970s, Fourteenth Amendment scholars have argued that the Court should take an antisubordination approach to interpreting the Equal Protection Clause.[45] These scholars argue that the purpose of the Fourteenth Amendment is to prevent the creation or entrenchment of a politically powerless racial caste.[46] Thus, the Court should apply strict scrutiny to laws that perpetuate racial subordination but should grant judicial deference to laws designed to remediate or dismantle racial caste.[47]

The antisubordination scholars contrast their approach with the Court’s “anticlassification” equal protection jurisprudence, which conceives of racial discrimination as an individual harm instead of a structural harm.[48] Under the anticlassification approach, the Court has applied strict scrutiny to laws that result in racial distinction, regardless of whether that distinction exists for a remedial or a subjugating purpose. Chief Justice Roberts’s pronouncement that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race”[49] encapsulates this approach.

Despite the Court’s continued adherence to the anticlassification approach, antisubordination theory persists in the academic community, with many championing it as the superior way to interpret the Equal Protection Clause.[50] While a majority of the Court has never adopted the approach, there are signs that antisubordination theory may have traction with the Court’s current liberal wing. In a recent dissent, Justice Sotomayor framed the harms of racial discrimination in subordination terms: “[T]o know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process.”[51] Her subsequent dissent in Students for Fair Admissions v. Harvard amplified this commitment.[52] There, she drew upon the history of the Reconstruction Amendments and corresponding civil rights legislation as proof of Congress’s recognition that race-conscious remedial measures were necessary because “[a]bolition alone could not repair centuries of racial subjugation.”[53] Justice Jackson has similarly recognized that the Fourteenth Amendment should be construed “in a race conscious way,” and has noted that it was adopted “to ensure that people who had been discriminated against, the freedmen[,] . . . were actually brought equal to everyone else in society.”[54] Her own dissent in Students for Fair Admissions emphasized that enduring “[g]ulf-sized” racial gaps in “health, wealth, and well-being” indicate that we have strayed from the Constitution’s foundational principles of equality.[55] Although less explicit than her liberal colleagues, Justice Kagan has also drawn upon antisubordination themes. In addition to joining both dissents in Students for Fair Admissions, Justice Kagan framed the value of diversity in terms of structural power for underrepresented groups during oral arguments: “Universities are the pipeline to that leadership. Now, if universities are not racially diverse and your rule suggests that it doesn’t matter, well, then [military, business, and legal] institutions are not going to be racially diverse either.”[56]

This Article argues that the antisubordination principle of the Fourteenth Amendment can and should inform a similar approach to interpreting the Eighth Amendment. The Eighth Amendment resembles the Equal Protection Clause of the Fourteenth Amendment in key ways. First, the texts of both Amendments employ broad concepts in need of mediating principles of interpretation. Put simply, “cruel and unusual” is just as open to interpretation as “equal protection of the laws.”[57] Second, the histories and subsequent jurisprudence of both Amendments indicate concern with preventing structural harm, including group hierarchy. Third, Eighth Amendment doctrine has historically imported Fourteenth Amendment values of equality and fairness. Finally, contemporary legislation implicating both Amendments often results in the same harm: racial subordination.[58]

This Article makes the case for an Antisubordination Eighth Amendment in four parts.[59] In Part I, I examine how punishment functions as the dominant mechanism of racial subordination in contemporary society. I then consider how the Court’s Eighth Amendment jurisprudence manifests racial subordination through virtually unchecked punishment. In Part II, I trace the development of the antisubordination principle of the Fourteenth Amendment’s Equal Protection Clause, focusing on the Clause’s text, history, and jurisprudence. In Part III, I posit that the Eighth and Fourteenth Amendments have long had a special relationship, resulting in critical doctrinal overlap. I then examine how traditional modalities of constitutional interpretation provide support for an alternative interpretation of the Eighth Amendment, consistent with the Fourteenth Amendment’s antisubordination principle. In Part IV, I discuss several implications of an Antisubordination Eighth Amendment before identifying and responding to potential limitations. While this normative vision for the Eighth Amendment is unlikely to resonate with the Court’s current conservative majority, an antisubordination approach to interpreting the Eighth Amendment is both plausible and desirable as a future remedy for structural harms of the criminal legal system.[60]

I. Criminal Punishment as Subordinating

In this Section, I illustrate why the Eighth Amendment needs re-theorizing. I begin by examining the historical and contemporary harms of the criminal legal system, including the entrenchment of racial caste and group subordination. I then demonstrate how the Court’s current Eighth Amendment jurisprudence has not only failed to address those harms but has perpetuated them.

A.     Racial Caste and the Criminal Punishment System

The story of the modern criminal punishment system in the United States has been a story of mass incarceration. Researchers have noted that this “system defaults to putting most people convicted of crimes behind bars.”[61] Despite growing attention, the problem of mass incarceration persists. A 2023 sentencing report found that “[o]n any given day, there are nearly 1.7 million people serving sentences in prison and jail, almost 500,000 more detained in jail pretrial, another 4.4 million under some form of probation or parole control, and between 70 and 100 million marked with a record of arrest or conviction.”[62] Sentences of incarceration are lengthy, with “[o]ne in seven people in U.S. prisons serving a life sentence.”[63] This means that the number of people currently serving life sentences exceeds the total number of people serving any prison sentence in 1970.[64]

Scholars have debated whether the criminal legal system is an intentional tool of white supremacy[65] or whether racial disparities result from the unconscious racial bias and anti-Blackness that are the legacy of American slavery and Jim Crow segregation.[66] However, a growing consensus holds that mass incarceration both drives and entrenches contemporary racial subordination.[67] Today’s criminal legal system is the “primary site of racial injustice.”[68] Black and Brown people receive differential treatment at every level, from policing to sentencing. Punishment outcomes reveal cumulative disadvantage.[69] Nearly half of the people sentenced to over fifty years in prison are Black.[70] Federal sentences imposed on Black men are, on average, 19.1 percent longer than white men convicted of similar crimes.[71] They are also 21.2 percent less likely than white people to receive sentences lower than the minimum recommended by the sentencing guidelines.[72]

Punishment has been racialized since the early days of the republic. Dorothy Roberts has written that race “is embedded in the very foundation of our criminal law. Race helps to determine who the criminals are, what conduct constitutes a crime, and which crimes society treats most seriously.”[73] For example, beginning in the seventeenth century, Virginia became one of many Southern states to enact “slave codes,” which codified public punishment for enslaved Black people that was not applicable to white people.[74] Virginia authorized the death penalty for more than sixty-eight crimes, if committed by enslaved people. [75] These capital crimes covered some acts that were not even criminalized for white people, and none of them carried a sentence of death for white people.[76] Enslavement was authorized as a criminal punishment for free Black people, but not for white people.[77] In addition to state-codified punishment, slave owners and their typically white employees also routinely engaged in extrajudicial corporal and capital punishment of enslaved Black people.[78]

Following the Civil War and Emancipation, Southern states began enacting Black Codes intended to return newly freed Black people to involuntary servitude.[79] New crimes, including “vagrancy,” were imposed, and forced labor became the preferred punishment.[80] A Black person could be convicted of vagrancy for lacking a labor contract, for “loiter[ing] away his time,” or for “wandering or strolling about in idleness” when able to work.[81] States also increased the punishment for existing crimes that disproportionately impacted Black people, imposing sentences of hard labor for petty larceny and hog stealing, and for crimes only enforced against Black people, such as “walking on the grass or spitting on the sidewalk.”[82] As the prison population grew, states began leasing Black incarcerated people to private parties to perform work in what became known as “convict leasing.”[83] Dorothy Roberts observes that, as a result of these laws and practices, “Southern prison populations swelled and became for the first time predominately [B]lack.”[84] In fact, by the 1870s, Black people made up 95 percent of the people imprisoned in the South.[85] By 1890, they comprised nearly a third of those imprisoned nationwide, despite being only 12 percent of the population—a statistic that persists to the present day.[86]

Khalil Gibran Muhammad notes that the 1890 crime statistics inspired a new Progressive Era racist ideology, linking Blackness and criminality: “From this moment forward, notions about [B]lacks as criminals materialized in national debates about the fundamental racial and cultural differences between African Americans and native-born whites and European immigrants.”[87] The concept of African American criminality provided justification for the legally subordinate status of Black people and for the acceptance of violence against them as necessary for public safety.[88] This ideology followed Black people as they migrated north in the decades that followed, fueling high arrest rates and long sentences in that region as well.[89]

Black people continued to receive harsher sentences than similarly situated white people, and not only in the South.[90] In northern and western states, few white people received prison sentences for petty offenses and those who did were routinely pardoned.[91] In 1926, New York enacted an early “four-strikes” law to send recidivists to prison for life.[92] Designed to apply to Prohibition-era gangsters, the law instead was primarily levied on Black people who committed nonviolent property crimes, as white juries nullified verdicts and judges persuaded special plea bargains for white defendants.[93]

In the 1930s, the federal government began publishing Uniform Crime Reports, which supplanted census data as the new authority on race and crime in America.[94] The New Deal ethos did spark some reform, with emphasis placed on rehabilitation that included access to education and vocational training and increased visitation and recreation.[95] But as with the New Deal reforms more generally, Black people rarely received the benefit of prison reforms.[96] In the 1930s, government funds earmarked for rehabilitative programming were reserved for white prisoners.[97] Government statisticians eventually collapsed white ethnic identities into a single category of “White,” and as a result, “by the early 1940s, ‘Black’ stood as the unmitigated signifier of deviation (and deviance) from the normative category of ‘White.’”[98]

As investments in policing in the 1960s led to increases in crime reporting, media coverage created a false narrative of a national crime crisis, prompting federal intervention.[99] Both liberal and conservative politicians emphasized punishment over social welfare as a means to address poverty and unrest in many American cities following the Civil Rights Movement, laying the seeds for mass incarceration.[100] President Johnson fueled law enforcement through his War on Crime initiative, intending to increase surveillance on Black youth, whom he believed responsible for urban uprisings.[101] The FBI began operating COINTELPRO, which infiltrated Black activist groups and monitored Civil Rights leaders.[102] President Nixon championed policies that knowingly and systematically targeted Black people for imprisonment.[103]

From 1980 to 2010, the prison population exploded from 329,000 to 1.6 million people.[104] President Reagan’s War on Drugs was part “of a much larger set of domestic anticrime policies that focused primarily on [B]lack youth and their families but . . . ensnare[d] millions of Americans” of all races.[105] Arrest numbers exploded under these policies, and  80–90 percent of those arrested for drug crimes were Black.[106] But defendants were not treated equally. State and federal sentencing guidelines mandated much longer sentences for people convicted of possessing crack, who typically were Black, than for people convicted of possessing cocaine, who typically were white.[107] States criminalized women whose children tested positive for crack, and prosecutors targeted Black women, who were more likely to use the drug than white women.[108] Democratic and Republican politicians justified these policies with the racially coded language of  “‘crack heads,’ ‘crack babies,’ ‘super predators,’ and ‘welfare queens.’”[109] To show that no Republican politician took a tougher stance on crime than he, President Clinton championed a federal three strikes law, permanently disqualifying those with felony drug convictions from receiving welfare or food stamps and initiating policies that made it easier for them to be evicted from federally assisted public housing.[110]

In addition to policies that increased arrests, both the federal government and the states significantly increased sentences. Mandatory minimum sentencing exploded in popularity throughout the 1970s, decreasing prosecutorial and judicial discretion to avoid prison time.[111] Three strikes and habitual offender laws also dramatically increased sentence lengths for people convicted of multiple crimes.[112] In the 1980s and 90s, “truth in sentencing” laws severely curbed the use of parole, requiring people with violent felony convictions “to serve at least 85 percent of their prison terms.”[113] A researcher at the Vera Institute noted that, in some states, truth in sentencing laws doubled prison time.[114] Finally, the use of life-without-parole sentencing surged, with all fifty states authorizing it as a possible punishment, thirty-seven states permitting it for non-homicide crimes, and five states designating that all life sentences ban any possibility of parole.[115]

These circumstances culminated in a contemporary criminal punishment system that, as Michelle Alexander has observed, “imprisons a larger percentage of its [B]lack population than South Africa did at the height of apartheid.”[116] As I have argued in previous works, the disproportionate sentencing of Black people is in part explained by the wide discretion given to sentencers who harbor conscious or unconscious racial bias.[117] Americans continue to associate Blackness with criminality and dangerousness and whiteness with good citizenship and victimhood.[118] Studies show that people view Black children as older and less innocent than white children;[119] that judges impose longer sentences on defendants with more Afrocentric physical features;[120] and that white capital jurors are less likely to believe Black defendants’ expressions of remorse.[121] Because a sentencer’s racial identity influences sentencing outcomes, racially disparate sentencing is aggravated by the fact that white people are overrepresented both on the judiciary and on sentencing juries.[122]

While individuals suffer the immediate harms of disproportionate punishment, the long-term harm is structural. Incarceration removes economic actors from the community.[123] It separates parents from children and disrupts social relationships.[124] It reduces membership in churches and community groups.[125] Upon release from prison, people are branded as felons. They suffer significant employment, housing, and educational disadvantages, are disqualified from public benefit programs, and may be prohibited from participating in the polity by voting, running for office, and serving on juries.[126] If they become trial witnesses they will be subject to impeachment based solely on the fact of their conviction, forever branding them as dishonest.[127] They may lose their parental rights or the right to live legally in the United States.[128] In some cases, they may be subject to public registration and notification requirements or civil confinement.[129] These penalties result in economic, political, and social subordination. When individuals subject to this subordination disproportionately come from and return to Black and Brown communities, the consequence is entrenched racial caste.[130]

B.     How Eighth Amendment Doctrine Has Perpetuated Racial Subordination

The Eighth Amendment might seem an obvious candidate to rein in the growth of racial subordination stemming from the criminal punishment system. But, in fact, the Eighth Amendment has perpetuated, enabled, and entrenched racial caste. In effect, Eighth Amendment doctrine is itself subordinating.[131]

In this Section, I focus on five doctrinal aspects of the Court’s punishment jurisprudence that legitimize racial hierarchy and group domination.[132]

1.     Supplanting Racial Discrimination with Arbitrariness

The Supreme Court has long been aware of the racially discriminatory nature of the criminal legal system but has consistently sidestepped questions of race. When it reversed the nine death sentences of the Scottsboro Boys—Black teenagers convicted of raping two white women—the Court did so on right-to-counsel grounds in lieu of addressing two other legal claims more directly bound up with racism.[133] In 1951, when then-attorney Thurgood Marshall brought the cases of the Groveland Four—again young Black men and boys convicted of raping white women—to the Court, the Court issued a per curiam reversal without opinion.[134] In 1963, then-Supreme Court clerk Alan Dershowitz prepared and circulated a memo summarizing the death penalty’s racially discriminatory application.[135] The memo highlighted, among other things, the racial disparity in death sentences imposed for sexual crimes.[136] But Justice Goldberg (for whom Dershowitz was clerking) thought that focusing on race was strategically fraught, so he reduced the document to a footnote in a larger argument against the death penalty.[137] Later, at Chief Justice Warren’s request, Goldberg omitted any discussion of race whatsoever from a dissenting opinion that he wrote based on the memo.[138]

When the NAACP Legal Defense Fund (“LDF”) mounted a strategic attack on the death penalty in the 1960s and 70s, it supplied the Court with evidence both that states had historically imposed the punishment disproportionately against Black people and that they continued to do so.[139] The Court passed over the issue, granting cert or basing decisions on other issues instead.[140]

The Court’s “race blindness” was solidified in Furman v. Georgia, which held that the death penalty violated the Eighth Amendment’s cruel and unusual punishment clause as applied in the consolidated cases before the Court.[141] Furman so held not because the death penalty was racially discriminatory, but because it was arbitrarily imposed.[142] Furman was a fractured 5-4 decision, with five Justices finding the Georgia and Texas capital sentencing schemes unconstitutional but employing different reasoning.[143]

Only two of these Justices emphasized race. Justice Douglas found that the “unusual” prong of the punishment clause forbade discriminatory application, including racially discriminatory application: “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”[144] Justice Marshall turned to data to conclude that Black people were disproportionately executed: “It is immediately apparent that [Black people] were executed far more often than whites in proportion to their percentage of the population. Studies indicate that while the higher rate of execution among [Black people] is partially due to a higher rate of crime, there is evidence of racial discrimination.”[145]

The remaining three Justices emphasized arbitrariness as the true Eighth Amendment problem. Justice Brennan, who would have found the death penalty unconstitutional in all circumstances,[146] located the Eighth Amendment violation in the punishment’s arbitrary imposition: “[T]he very words ‘cruel and unusual punishments’ imply condemnation of the arbitrary infliction of severe punishments.”[147] Justices Stewart and White wrote the remaining two concurrences, which, as the narrowest opinions, became the law of Furman.[148] Both opinions embraced arbitrariness as capital punishment’s constitutional flaw. White complained that the penalty was imposed so infrequently that it could not possibly meaningfully achieve any penological goals.[149] Stewart famously declared that “[t]hese death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”[150] Stewart dismissed the race issue as unproven and “put it to one side.”[151]

Furman was a turning point in Eighth Amendment jurisprudence, not simply because it found certain death sentences unconstitutional. The Court’s emphasis on arbitrariness instead of racial discrimination conceived of the harm of cruel and unusual punishment as an individual harm instead of a group harm. Put another way, the constitutional harm was that some individuals were sentenced unfairly as compared to other individuals—not that capital punishment was being imposed at greater rates on an already subordinate racial group.[152]

In response to Furman, states tackled only the problem identified by the controlling opinions. They redesigned capital sentencing procedures to minimize arbitrariness, not racial discrimination.[153] Four years later, in Gregg v. Georgia and its companion cases, a newly composed Court reauthorized capital punishment with these procedural safeguards.[154] In doing so, the Gregg Court shifted the Eighth Amendment concern from substantive sentencing outcomes to procedural fairness. The Court’s continued emphasis on capital sentencing procedures designed to minimize arbitrariness created a veneer of legitimacy on a punishment that continued to disproportionately impact Black people.[155]

2.     Accepting Racially Disparate Sentencing as Inevitable

In 1986, litigants directly confronted the Court with the reality of racially disparate death sentences. In the much-maligned McCleskey v. Kemp,[156] the Court confirmed the constitutionality of the Georgia capital sentencing statute despite statistical evidence demonstrating that juries imposed sentences disproportionately based on the race of the defendant and the race of the victim.[157] McCleskey argued that, as a result of this disproportionate sentencing, the Georgia capital punishment scheme violated both the Eighth Amendment punishment clause and the Fourteenth Amendment Equal Protection Clause.[158] Already committed to an anticlassification approach, the Court denied the equal protection challenge because McCleskey was unable to prove “purposeful discrimination.”[159]

In rejecting the Eighth Amendment claim, the Court made several important moves. First, it emphasized that—consistent with the mandate of Furman and Gregg—Georgia had enacted capital sentencing procedures designed to minimize arbitrariness.[160] But unlike Furman and Gregg, which also had a substantive guarantee of nonarbitrary sentencing outcomes, McCleskey jettisoned the substantive component, finding that the Eighth Amendment guaranteed procedures, not results.[161]

Second, the Court conflated arbitrariness and racial bias, recasting Georgia’s procedure to minimize arbitrariness as one that minimized racial bias without further explanation.[162] But, of course, racial discrimination, which manifests as sentencing based on conscious or unconscious racial bias, differs from arbitrariness, which manifests as sentencing based on irrational characteristics that lack social meaning. There is no evidence that states enacted procedural protections to minimize racial bias following Furman.[163]

Third, the Court reframed a procedural protection—jury discretion in sentencing—as a bulwark against racial discrimination in a way that I have previously argued ignores its potential as a tool of racism.[164] The Court had long recognized that the Eighth Amendment calls for individualized sentencing in capital cases, which requires sentencers to consider an individual defendant’s character and the circumstances of their crime before imposing sentence.[165] The Court characterized jury discretion to conduct this individualized sentencing as fundamentally protective of Black defendants: “[I]t is the jury that is a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’”[166] The Court claimed that broad jury discretion, rather than perpetuate discrimination, created a windfall for defendants because decisions to acquit or grant leniency were unappealable.[167] But, as I have argued, the Court incorrectly characterized jury discretion and individualized sentencing as one-way mechanisms of mercy, ignoring the fact that juries could deny “deserving” Black defendants on racial grounds.[168] That said, the Court also saw no constitutional problem in sentencers relying on racial considerations to bestow “discretionary acts of leniency” on “undeserving” white defendants or those convicted of murdering Black victims.[169]

Fourth, the Court declared its powerlessness to out racism either in capital sentencing or in the criminal legal system more broadly, famously expressing its anxiety that McCleskey’s claim “throws into serious question the principles that underlie our entire criminal justice system.”[170] Not only did it reject the argument that the Eighth Amendment forbids racially discriminatory outcomes, but the Court failed to consider the fact that it could require additional procedural protection to minimize the risk of these outcomes—as it had done with arbitrariness in Gregg. The Court once again created a false equivalence between racial discrimination and arbitrariness by arguing that group-based discrimination lacked a limiting principle, theoretically allowing claims based not only on race, but gender, facial characteristics, or attractiveness.[171] In doing so, the Court turned a blind eye to its own traditional role in defining those limiting principles.[172]

By accepting racial discrimination as an inevitable, constitutionally permissible characteristic of the criminal legal system, the Court extinguished the remedial potential of the Eighth Amendment. The result is today’s punishment system, where racially discriminatory outcomes are “not news.”[173]

3.     The Evolving Standards of Decency Test

The dominant Eighth Amendment test, which the Court uses to determine if a punishment is cruel and unusual, is known as the evolving standards of decency test.[174] While standards of decency that evolve with the times appear promising as an animating principle, in practice the test provides for a highly constrained review that gives tremendous deference to the decisions of legislatures and sentencers.[175] First, the Court assesses if the punishment is “unusual” by examining state legislation, jury verdicts, and other evidence to determine whether “a national consensus has developed against it.”[176] Second, the Justices determine if the punishment is “cruel” by turning to their “independent judgment,” typically to consider the logical fit between the punishment and its penological justifications.[177]

In a previous work, I criticized the national consensus portion of the evolving standards of decency test as methodologically flawed, in part because it relies on a majoritarian approach to protecting the rights of an often-despised minority.[178] The test typically requires deference when a majority of state legislatures permits a punishment, regardless of the cruelty of the punishment or the unfairness of its application. As a result, the test provides little protection for minority rights. Instead, it invalidates the sentences only of statistical outliers,[179] legitimating the permanent punishments of death or life without parole for everyone else. Tonja Jacobi has summed up the efficacy of this approach: “[D]eclaring an action unconstitutional because a significant number of states prohibit the practice leaves the Supreme Court enforcing constitutional protections only in cases where they are least needed.”[180]

This tendency is compounded by the fact that the Court has explicitly limited the test’s application to certain extreme sentences. Declaring that, as far as the Eighth Amendment is concerned, “death is different”[181] and “children are different,”[182] the Court has justified reserving the evolving standards of decency test for capital sentences and sentences of life without parole for children. In doing so, it has created two separate tracks of Eighth Amendment jurisprudence: a robust review of a tiny portion of very extreme sentences and a nearly nonexistent review of the overwhelming majority of criminal punishments.[183]

4.     Noncapital Proportionality Doctrine

In noncapital cases that involve adults—the overwhelming majority of criminal cases in the United States—the Court has found that the Eighth Amendment’s punishment clause plays very little role. Although the Court’s early Eighth Amendment cases invalidated extended hard labor[184] and citizenship-stripping as unconstitutionally disproportionate punishments for specific noncapital crimes,[185] its subsequent cases significantly constrained Eighth Amendment review of those crimes. After acknowledging its “reluctance to review legislatively mandated terms of imprisonment,”[186] the Court declared that the Eighth Amendment forbids only noncapital sentences deemed “grossly disproportionate.”[187] Under this standard, the Court will uphold punishments as long as the state has a “reasonable basis for believing” that the “sentence[] . . . ‘advance[s] the goals of [its] criminal justice system in any substantial way.’”[188] Accordingly, the Court upheld the constitutionality of each of the following punishments: a sentence of twenty-five years to life for shoplifting four videotapes as a third strike;[189] a sentence of twenty-five years to life for stealing golf clubs as a third strike;[190] and a life sentence for obtaining $120.75 by false pretenses as a third strike.[191] Far from creating a recidivism exception, the Court has also upheld lengthy punishments for first-time nonviolent offenders. It found neither a mandatory sentence of forty years for possession with intent to distribute nine ounces of marijuana[192] nor a mandatory sentence of life without parole for possession of 672 grams of cocaine to be grossly disproportionate.[193] The Court’s embrace of the grossly proportionate requirement has led scholars to conclude that proportionality as an Eighth Amendment principle is dead for nearly all noncapital cases.[194]

5.     Narrowly Defining Punishment

While criminal sentences facilitate racial subordination in and of themselves, they also have downstream consequences—known as collateral consequences—that compound subordination by negatively impacting economic opportunity, social status, parental rights, and political participation. The Supreme Court has repeatedly found that collateral consequences, including employment disqualification,[195] registration as a sex offender,[196] civil commitment,[197] and deportation,[198] are not punishment. While these cases have typically been litigated under the ex post facto clause and not the Eighth Amendment, there is every indication that the Court would also find that collateral consequences are not punishment for purposes of Eighth Amendment analysis as well.[199] To begin with, the Court has found that the primary test to determine whether or not a statute is punitive consists of factors that “have their earlier origins under the Sixth and Eighth Amendments.”[200] Moreover, in the early Eighth Amendment case Trop v. Dulles, dicta described felon disenfranchisement not as a punishment but as a “nonpenal exercise of the power to regulate the franchise.”[201] Without explicit signaling to the contrary, lower courts have almost universally found that collateral consequences are not entitled to Eighth Amendment protection.[202]

The Court’s failure to include collateral consequences in its definition of punishment creates a distinction without a difference.[203] Both punishment and so-called collateral consequences are state restrictions on autonomy, levied in response to criminal activity.[204] Both result in political, economic, and social subordination—particularly along racial lines.[205] Instead, the primary motivator for the distinction seems to be administrative. By declaring collateral consequences “not punishment,” the Court has severely constrained avenues of review for those who suffer them. As a result, legal challenges are raised under the Equal Protection Clause and subject to toothless rational basis review.[206] The Court’s failure to address these concrete examples of structural subordination under the Eighth Amendment’s punishment clause has signaled their constitutional permissibility, thereby legitimizing their imposition.

* * *

The Eighth Amendment had potential as a tool to ameliorate racial subordination by providing meaningful guardrails on punishment practices. Instead, the Supreme Court has increasingly minimized the role of the Eighth Amendment to a check only on extreme forms of punishment that have largely been abandoned. Not only has Eighth Amendment doctrine failed to remedy the structural harms of the criminal punishment system, but it has also removed itself from the conversation. In its absence, racial subordination has flourished.

Constitutional interpretation of the Eighth Amendment needs a coherent underlying value. In the next Section, I look to the antisubordination principle of the Fourteenth Amendment as a potential analogue for Eighth Amendment interpretation.

II. Antisubordination Theory and the Fourteenth Amendment

In this Section, I recount the origins and key components of antisubordination theory, before explaining how scholars have grounded the theory in the text of the Fourteenth Amendment, the history of the Reconstruction period, the Court’s jurisprudence, and the harms of contemporary racism. I then discuss both the limitations and the potential of antisubordination theory.

A.     The Theory and its Evolution

Most closely associated with the Fourteenth Amendment, antisubordination theory posits that constitutional interpretation should center on the dismantlement of caste hierarchy. Antisubordination theory interrogates the relationship between dominant groups and subordinate groups within a society.[207] Modern conceptions of the theory start from the premise that American society is based on a long-standing racial caste system.[208] Christopher J. Tyson has identified the organizing principles of contemporary antisubordination theory to include “1) the existence of a group status that perpetuates subordination, 2) group history that includes discrimination or subordination, 3) subordination methods and processes that have both an exponentiality to their impact over time and are inter-generationally transferred, and 4) group political powerlessness.”[209] The animating principle behind antisubordination theory is that the state has an obligation to root out laws and practices that create and perpetuate caste, particularly racial caste.[210]

Antisubordination theory developed in response to the Court’s interpretation of the Fourteenth Amendment’s Equal Protection Clause following the Civil Rights Movement.[211] The Court had recently curtailed the viability of the disparate impact doctrine in Washington v. Davis, holding that evidence of disparate impact could not be “the sole touchstone of an invidious racial discrimination forbidden by the Constitution.”[212] The Court had also begun moving toward an anticlassification approach, strictly scrutinizing statutes that were facially racial, regardless of whether they had remedial or subjugating effects. The idea that affirmative action programs were equally as constitutionally suspect as Jim Crow segregation struck many scholars as logically warped and morally incorrect.[213] They sought to move the Court in a more coherent direction.

The origins of antisubordination theory appeared in the work of constitutional law scholar Owen Fiss, who argued that interpretation of the Equal Protection Clause should center groups instead of individuals.[214] Drawing on the lessons of the Civil Rights Movement, Fiss proposed a “group-disadvantaging principle” to guide equal protection jurisprudence.[215] Under Fiss’s theory, the groups entitled to constitutional protection would be those that were “specially disadvantaged,” i.e., experiencing low socio-economic and political status over an extended period as a result of societal prejudice.[216] Fiss distilled this description to three criteria: “(1) [T]hey are a social group; (2) the group has been in a position of perpetual subordination; and (3) the political power of the group is severely circumscribed.”[217] Fiss’s group-disadvantaging theory conceptualized harm as “status-harm.”[218] Mere disparate impact would not be enough; claimants would have to demonstrate that a particular practice or policy negatively impacted the status of the group.[219] A successful demonstration of status harm would require a court to “strictly scrutinize” the policy or practice at issue.[220] Conversely, remedial policies and practices, such as affirmative action, that conferred “preferential treatment” on these specially disadvantaged groups would need only satisfy rational basis review.[221]

Other scholars built on Fiss’s proposal and theorized an “antisubordination principle” that emphasized historical and social context as a basis for judicial interpretation.[222] Randall Kennedy clarified that an antisubordination approach to interpreting the Equal Protection Clause incorporated “both the great historic wrong that gave rise to the Reconstruction amendments and the great contemporary injustice” of ongoing racial subordination.[223] Reva Seigel and Jack Balkin explained that “whether a practice violates an antisubordination principle depends heavily on factual and historical contexts, and, in particular, on the laws and social mores that prevail in a given society at a given moment in history.”[224]

Critical race theorists emphasized the centrality of race in antisubordination theory.[225] Kimberlé Crenshaw explained that describing American society in terms of dominant and subordinate groups without recognizing “the hegemonic role of racism” was fatally inadequate.[226] Crenshaw advised that formal rejection of white supremacist principles was insufficient to produce meaningful societal change: “The society remains white supremacist in its maintenance of the actual distribution of goods and resources, status, and prestige in which whites establish norms which are ideologically self-reflective.”[227]

Crenshaw also disentangled racial caste and economic class. She contended that racial caste was grounded in a white supremacist ideology that purported to justify the subordinate position of Black people as “logical and natural.”[228] This racist ideology functioned to make racial caste more fundamental than class distinctions because it encouraged lower class white people to identify with interests of white elites at the expense of Black people.[229] Crenshaw explained, “Racism helps create an illusion of unity through the oppositional force of a symbolic ‘other.’”[230] She argued that, despite the gains of the Civil Rights Movement, beliefs in racial inferiority continued to operate in contemporary society to maintain racial subordination, albeit under the surface: “The end of Jim Crow has been accompanied by the demise of an explicit ideology of white supremacy. The white norm, however, has not disappeared; it has only been submerged in popular consciousness.”[231]

Modern antisubordination theory centers three concepts. First, rights enforcement on a purely individual level is inadequate because it ignores the primacy of group identity—particularly racial identity—in American social hierarchy. Second, laws employing racial classifications are not inherently harmful; rather, they are harmful only if they result in racial subordination. Third, courts should strictly scrutinize legislation that produces racially subordinating outcomes whether or not these outcomes are intended. That is, laws with a racially disparate impact should receive the same exacting review as those that are intentionally racially discriminatory.

B.     Justifications for Antisubordination as a Value of Constitutional Interpretation

The antisubordination principle is not simply a purposive theory of constitutional interpretation to address the contemporary harm perpetuated against racial minorities. Antisubordination scholars have found support for the theory in the text of the Constitution, the history of the Reconstruction Amendments, and the Supreme Court’s jurisprudence.

1.     Text

The text of the Fourteenth Amendment is broad, requiring that no state “deny to any person within its jurisdiction the equal protection of the laws.”[232] This differs from specific provisions of the Constitution where meaning lacks ambiguity—for example, the requirement that the President must be at least thirty-five years old.[233] Accordingly, the text of the Fourteenth Amendment is subject to interpretation. Antisubordination scholars have argued that the Fourteenth Amendment’s ambiguity necessitates an implementation rule for courts to engage in coherent judicial review.[234] Owen Fiss called these implementation rules “mediating principle[s]” that give “meaning and content” to the text.[235] Fiss stressed that the Court’s anticlassification approach was not dictated by the text of the Equal Protection Clause; it was merely a judicially determined mediating principle.[236] He proposed his group-disadvantaging principle as a superior approach because it placed conceptions of equality in a social context.[237]

2.     History

Antisubordination scholars have also grounded their interpretive theory in the history of the passage of the Reconstruction Amendments.[238] Historians and scholars have concluded that the years following the Civil War were constitutionally transformative to the point that they constituted a Second Founding, as the country shifted from a human slavery orientation to a human rights orientation.[239] Fiss argued that because the original intent of the Fourteenth Amendment was to “safeguard[] [Black people] from hostile state action,” the Amendment was designed to apply to social groups.[240] Fiss elaborated that the target social groups were those who, like Black people during Reconstruction, had a history of subordinate status.[241] Many pointed to the statements of Reconstruction legislators as anti-caste.[242] For example, Senator Charles Sumner contended that the “Fourteenth Amendment would abolish ‘oligarchy, aristocracy, caste, or monopoly with particular privileges and powers,” and Senator Howard explained that the Amendment sought to “[do] away with the injustice of subjecting one caste of persons to a code not applicable to another.”[243] Other scholar emphasized that the race-conscious legislation passed by the Reconstruction Congress revealed that the Fourteenth Amendment was intended not to end racial classification but to advance Black remediation.[244]

Scholars have also pointed to the scope of the remaining Reconstruction Amendments to show their transformative nature. Jack Balkin has argued that the Thirteenth Amendment demonstrates a commitment to antisubordination principles because it called not only for the elimination of slavery, but also for the elimination of its “badges and incidents,” an allusion to the “system of cultural meanings that made slavery possible.”[245] The Fifteenth Amendment granted Black people political power and rendered the government formally accountable to them through enfranchisement.[246] These three Amendments worked together to promote the dismantlement of legal, economic, and political subordination of formerly enslaved Black people.

3.     Doctrine

Antisubordination scholars also find support for their theory in Supreme Court jurisprudence. Antisubordination themes appear throughout the Supreme Court’s equal protection jurisprudence. Some of these scholars[247] see an early example of antisubordination themes in Justice Harlan’s dissent in Plessy v. Ferguson, in which he declared that “in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here.”[248] Others[249] have found the theory’s roots in footnote four of Carolene Products Co., [250] which required intensive judicial scrutiny of majoritarian legislation that impacts politically powerless minority groups.

The Court’s opinions during and immediately following the Civil Rights Movement were replete with antisubordination themes.[251] In Brown v. Board of Education[252] and Loving v. Virginia,[253] the Court appeared to recognize the harm of racial classification not as classification per se, but as a stigma and status harm that contributed to both the subordination of Black people and the perpetuation of white supremacy.[254] The Court echoed these themes in subsequent school integration cases like Green v. County School Board,[255] where it found that a “freedom of choice” admissions policy abrogated the school board’s “affirmative duty” to eliminate racial discrimination “root and branch.”[256] In 1971, in Swann v. Charlotte-Mecklenburg Board of Education,[257] the Court rejected the argument that teacher assignment must be colorblind,[258] and in a related case[259] it explained that “[j]ust as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy.”[260] Later that same year, the Court held that the Constitution permitted consideration of race when the purpose of a policy was to achieve integration, finding that “[i]n this remedial process, steps will almost invariably require that students be assigned ‘differently because of their race.’”[261]

C.    Limitations and Possibilities

Despite the consistency of these themes, the Court has never explicitly adopted an antisubordination principle in its equal protection jurisprudence. Instead, beginning in the mid-1970s, the Court began to place significant limitations on the power of the Equal Protection Clause to render transformative change.[262] This change started in 1976 with Washington v. Davis, which rejected racially disparate impact as sufficient to demonstrate an equal protection violation and instead required proof of discriminatory intent.[263] The Court then moved steadily toward an anticlassification approach, chipping away at affirmative action programs by explaining that “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”[264] By 2007, it was “well-established” that the Court would apply strict scrutiny to any racial classification, whether its purpose was to distribute “burdens or benefits.”[265] In 2009, Ian Haney López encapsulated the position of antisubordination scholars on the Court’s equal protection cases: The Court “approaches the problem of race in our society exactly backwards, almost invariably striking down efforts to respond to racial hierarchy while insulating from more than cursory review state policies that disproportionately harm minorities.”[266]  

And yet, even as the Court embraced an equal protection jurisprudence that was explicitly anticlassification, scholars continued to find evidence of antisubordination themes animating some of the Court’s opinions, often in the protests of liberal Justices.[267] In his Bakke concurrence, Justice Blackmun famously warned, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy.”[268] Antisubordination concerns occasionally popped up in majority opinions as well. For example, the Court’s 2003 opinion in Grutter v. Bollinger,[269] which upheld Michigan Law School’s race-conscious admissions policy ostensibly on diversity grounds, acknowledged that “context matters” when interpreting the Equal Protection Clause.[270] The Court emphasized that the policy permitted effective participation in civic life and leadership opportunities to “members of all racial and ethnic groups.”[271]

Despite the ascension of the anticlassification approach, not every member of the Roberts Court has repudiated antisubordination values.[272] There are signs that antisubordination theory may have traction with the Court’s liberal Justices. Justice Sotomayor has emphasized history and context in the voting rights and affirmative action settings, emphasizing that current jurisprudence must take into account the government’s culpability in impeding Black political power and wealth accumulation.[273] Justice Jackson has indicated her view that the Fourteenth Amendment should be construed in a “race-conscious way,” in light of the intent of the Reconstruction Congress.[274] Justice Kagan has echoed the Court’s language in Grutter that the value of affirmative action is to ensure that the pipelines of leadership are accessible for those outside of the white majority.[275]

So while the current Court majority may seek to root out any vestiges of antisubordination from its constitutional doctrine, the principles remain in play among the Court minority and in the scholarly community. In fact, as I address in Part III, antisubordination theory provides a more coherent lens through which to view not only the Fourteenth Amendment but also the Eighth Amendment.

III. Antisubordination Theory and the Eighth Amendment

Modern antisubordination theory is not limited to interpretation of the Equal Protection Clause. For example, Jack Balkin has argued that “the constitutional principle of opposition to unjust status hierarchies is partially vindicated by the Equal Protection Clause, but it is also the concern of many other [constitutional] clauses . . . and is not the exclusive concern of any one of them.”[276] Several scholars have applied antisubordination theory to First Amendment interpretation,[277] while Christopher J. Tyson has urged local government law to develop a “durable and effective antisubordination principle.”[278] Sergio Campos has championed an antisubordination principle as a critical part of institutions and policy.[279]

In this Section, I argue that many aspects of the Eighth Amendment are particularly suited to antisubordination theory. I begin by discussing the special relationship that the Fourteenth and Eighth Amendments have had in Supreme Court jurisprudence. I then explore constitutional text, history, and structure in conjunction with contemporary values and make the case for an antisubordination interpretation of the Eighth Amendment that centers the dismantlement of racial caste.

In doing so, I do not mean to suggest that an antisubordination interpretation is the true theory of Eighth Amendment interpretation, but instead that it is a true theory of interpretation.[280] The Constitution is malleable across time and to different audiences and thus rarely has one correct interpretation. Instead, I aim to demonstrate the viability of antisubordination theory as a mediating principle of the Eighth Amendment by tethering the theory to traditional sources of constitutional interpretation.

A. The Special Relationship between the Eighth and Fourteenth Amendments

The Eighth Amendment balances citizens’ rights against the Government’s most extreme power: punishment, or the power to inflict violence on its citizens.[281] Yet those who suffer the punishment tend to be the most vulnerable among us. It is unsurprising that when the Court has attempted to navigate this extreme power imbalance, it has stressed the importance of fairness and equality—typically Fourteenth Amendment values—in the administration of punishment. Indeed, the Eighth and the Fourteenth Amendments have long shared a special relationship. In some cases, these Amendments’ doctrines are so entwined that disentanglement is nearly impossible.

These doctrinal overlaps have occurred most frequently in the context of the Due Process Clause. In 1971, the Court held in McGautha v. California that the California and Ohio death penalties did not violate the Fourteenth Amendment when they gave sentencers unfettered discretion to impose death “without any governing standards.”[282] The Court similarly rejected the argument that arbitrary outcomes offended the Fourteenth Amendment, finding no constitutional requirement of “a rational basis for distinguishing” those sentenced to death from those permitted to live.[283] The Court emphasized that the existence of superior sentencing procedures did not render the procedures constitutionally required: “[T]he Federal Constitution, which marks the limits of our authority in these cases, does not guarantee trial procedures that are the best of all worlds . . . .”[284]

Yet just a year later, in Furman v. Georgia, the Court struck down the Georgia and Texas capital sentencing schemes on Eighth Amendment and Fourteenth Amendment grounds, citing sentencers’ unfettered discretion, which resulted in arbitrary outcomes “wantonly and freakishly imposed.”[285] In doing so, the Furman Court did not overrule McGautha. Justice Stewart later attempted to explain the tension:

McGautha was not an Eighth Amendment decision, and to the extent it purported to deal with Eighth Amendment concerns, it must be read in light of the opinions in Furman v. Georgia. There the Court ruled that death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty violated the Eighth and Fourteenth Amendments.[286]

In subsequent cases, the Court made clear that the Constitution required that states seeking death sentences employ procedures to minimize arbitrariness, even if it was not always clear on what grounds.[287] When Gregg v. Georgia revisited capital punishment, the Court explained that for a death sentence to be constitutional, “[sentencer] discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”[288] Following Gregg, the Court began to refer to the “the distinctive procedural requirements of the Eighth Amendment”[289] and acknowledged “that the Eighth Amendment ha[d] been recognized to affect significantly both the procedural and the substantive aspects of the death penalty.”[290] Accordingly, the concept of “Eighth Amendment due process” began appearing in the legal academy.[291]

This kinship continued as the Court later relied on both Amendments to outlaw the execution of incompetent people,[292] to ban death sentences for people with intellectual disability,[293] and to outlaw mandatory sentences of life without parole for children.[294] In each instance, the Court not only made substantive categorical punishment exclusions, but it also tackled the constitutionality of the procedures used to determine membership in each category.[295]

Hints of doctrinal overlap also exist with respect to the Eighth Amendment and the Fourteenth Amendment’s Equal Protection Clause. In his concurrence in Furman, Justice Douglas observed that “[t]here is increasing recognition of the fact that the basic theme of equal protection is implicit in ‘cruel and unusual’ punishments.”[296] Douglas concluded that punishments “administered arbitrarily or discriminatorily” were “‘unusually’ imposed.”[297] He further explained that “[i]n a Nation committed to equal protection of the laws there is no permissible ‘caste’ aspect of law enforcement.”[298] Margaret Radin has written that the Court’s concern about arbitrary outcomes in Furman was fundamentally a concern about equal treatment:

[T]he idea that we commit moral error against an individual if we arbitrarily punish her more severely than others whose deserts are the same as hers has been a central moral premise, consistently espoused by the Court’s prevailing plurality [in Furman]. . . . Although the Supreme Court does not describe it as such, this can be characterized as a[n] . . . ‘equal protection’ notion of proportionality.[299]

Under this reading, the Court’s subsequent punishment-process cases could just as easily be understood as punishment-equal-protection cases due to the Court’s concern with consistent sentencing outcomes.

The Court’s merger of the Fourteenth and Eighth Amendments continued in McCleskey v. Kemp, where advocates challenged the constitutionality of racially disparate capital sentencing outcomes on both equal protection and cruel and unusual punishment grounds. The majority appeared to disentangle the doctrinal overlap in a way that marginalized the impact of both Amendments but, in reality, imported some of the limiting aspects of Fourteenth Amendment doctrine into the Eighth Amendment. First, McCleskey reduced the Eighth Amendment concern with arbitrariness to one solely about process, not results.[300] Second, the Court dismissed the constitutional significance of racially disparate sentencing outcomes under the Eighth Amendment in a way that resembled its Fourteenth Amendment aversion to disparate-impact claims. The Court suggested that evidence of discriminatory intent was required to find an Eighth Amendment violation, declaring, “[W]e decline to assume that what is unexplained is invidious.”[301] It defined Eighth Amendment arbitrariness as a constitutional concern with randomness, instead of with outcomes based on morally irrelevant criteria such as race.[302] Eighth Amendment scholar Lee Kovarsky summed up the move: “In much the same way that it rejected a correlation between outcomes and race as insufficient to prove an equal protection violation, McCleskey also considered that correlation insufficient to show Eighth Amendment arbitrariness.”[303]

Thus, for better or for worse, the Supreme Court has a history of pulling threads of Fourteenth Amendment doctrine into the Eighth Amendment. In light of this affinity, any Fourteenth Amendment theory of interpretation has particular relevance to the Eighth Amendment both in terms of logical coherence and judicial feasibility. But is there a principled basis to support antisubordination theory in the Eighth Amendment context? In the next Section, I rely on traditional modalities of constitutional interpretation to determine the viability of an Eighth Amendment interpretation that centers antisubordination.

B.    Support for an Antisubordination Eighth Amendment

In this Section, I look to the Eighth Amendment’s text and history, the structure of the Constitution, Supreme Court doctrine, and contemporary values for support for an antisubordination interpretation that centers the dismantlement of racial caste. Although I discuss each of these in turn, they are not meant to be considered in isolation. Most Justices apply multiple, overlapping modalities when interpreting the Constitution.[304]

Similar to that of the Fourteenth Amendment Equal Protection Clause, the text of the Eighth Amendment punishment clause is famously vague. Rather than enumerate prohibited punishments, the Framers proscribed “excessive” bail and fines and “cruel and unusual” punishment.[305] During the passage of the Bill of Rights, several people complained that the phrase “cruel and unusual punishment” was “meaningless.”[306] The only two recorded comments concerning the Eighth Amendment during debates of the First Congress remarked on its vagueness. Representative William Smith of South Carolina objected to the phrase cruel and unusual punishment as “indefinite,” and Representative Samuel Livermore of New Hampshire complained that the phrase “seems to have no meaning in it.”[307] Others echoed their concerns. James Iredell, who later became one of the original Supreme Court Justices, complained that “[t]he expressions ‘unusual and severe’ or ‘cruel and unusual’ . . . surely would have been too vague to have been of any consequence, since they admit of no clear and precise significance.”[308]

That a variation of the Eight Amendment’s language—“cruel or unusual”—appeared in the English Bill of Rights, the Northwest Ordinance, and nearly all state constitutions [309] has left multiple scholars to conclude that the phrase “cruel and unusual” amounted to “constitutional boilerplate.”[310] Because the text lacks sufficient precision and guidance, the Supreme Court requires an implementation rule or “mediating principle”[311] to apply the Eighth Amendment. As with the Fourteenth Amendment’s Equal Protection Clause, the text’s imprecision requires the Court to rely on other modalities to interpret the punishment clause.[312]

1.     History

Both the passage of the Eighth Amendment and the reorientation of constitutional thought during Reconstruction present relevant points of inquiry for a historical analysis of Eighth Amendment interpretation. Each of these periods provides some support for an antisubordination interpretation.  

The history of the Eighth Amendment’s passage provides little information about the Framers’ intentions, in part because the Amendment gained approval quickly without significant controversy.[313] Debate at the time appears to have been unusually spare.[314] Scholars have since discussed whether the historical prohibition on cruel and unusual punishments was a response to discomfort with European civil law,[315] with torture,[316]with departure from common law punishments,[317] with punishment that singled out individuals,[318] or with some combination of these.

At first glance, it seems implausible that the history of the Eighth Amendment could support an antisubordination interpretation. After all, the Bill of Rights was debated, passed, and implemented in the colonial era. The Constitution enshrined racial subordination in the form of chattel slavery.[319] It was ratified by a small group of elite white men—“less than 5 percent of the population” of the United States.[320] These men supported not only chattel slavery but also other forms of subordination, including disenfranchisement of women, genocide of Native people, and criminalization of gay sex.[321] They plainly did not intend the Eighth Amendment as a mechanism to dismantle racial caste.

That said, there is some evidence that the original Constitution and Bill of Rights contained anti-caste elements—at least pertaining to white men. Jack Balkin has argued that the Founders’ desire to break from Great Britain’s aristocratic social structure was fundamentally anti-caste, even though the Founders also admittedly at least tolerated racial and gender subordination.[322] Balkin points to the Constitution’s Titles of Nobility Clauses as an example of the Founders’ aversion to status hierarchy.[323] He has also contended that the Constitution’s Establishment Clause represents a desire to prevent a status hierarchy grounded in religion.[324] Akhil Amar has similarly argued that the Bill of Attainder Clauses sought to protect social groups, including kinship groups, from punishment.[325] Amar explains that behind the prohibition of bills of attainder was the principle that “it cannot be a crime simply to be who you are.”[326]

Criminal punishment at the time of the Framing did not chiefly operate as a mechanism of racial subordination in the way that it does today.[327] Chattel slavery served that purpose.[328] Because most of the Framers did not view racial subordination as morally or constitutionally problematic,[329] the Eighth Amendment could not have been formed or understood with that specific structural harm in mind. Even so, some scholars have contended that the original intent behind the Eighth Amendment rested on broad principles that are consistent with modern antisubordination values. Laurence Claus has argued that the Eighth Amendment’s animating principle was nondiscrimination.[330] Claus’s nondiscrimination principle resembles Amar’s conception of Bills of Attainder. Claus defines nondiscrimination as “treating like cases alike.”[331] A person must not be singled out for increased punishment based on morally irrelevant criteria.[332] Claus frames the English Parliament’s Declaration of Rights, which  responded to King James’s imposition of punishments not found in the common law, as evidence of  Parliament’s fear that one might be singled out for greater punishment than was customary.[333] He also argues that William Blackstone endorsed an antidiscrimination interpretation of the Eighth Amendment through his commentary that punishment should be imposed “for every subject alike” as a result of “unvaried rule.”[334] While Claus focuses his historical analysis on examples of singling out individuals for increased punishment, he concludes that this principle also provides support for a modern interpretation of the Eighth Amendment that prohibits increased punishment based on group membership.[335]

While colonial history makes a tenuous case for an antisubordination interpretation of the Eighth Amendment, the history of the Reconstruction era is far more supportive. This era did not merely result in the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. Instead, it constituted a “Second Founding” that presented a radically different vision of governance and fundamentally changed the Constitution[336]—what some scholars have described as a shift from a government based on human slavery to one based on human rights.[337] As antisubordination scholars have argued, the Reconstruction Congress sought to protect newly freed Black people and end their legal subordination.

This shift coincided with a change in the operation of criminal punishment. Through enactment of the Black Codes, Southern states were, for the first time, relying on the punishment system as a strategic mechanism of racial subordination.[338] The Black Codes limited the freedom of Black people and served to guarantee a cheap labor force for white Southerners.[339] A key feature of the Black Codes were vagrancy laws, which criminalized the behavior of Black men who were not working or not working in a way that satisfied white authorities.[340] The punishment for violation of these laws became forced labor.[341] The function of the Black Codes was not lost on the Reconstruction Congress and animated much of the discussion concerning the need for the Reconstruction Amendments.[342]

Two threads of congressional discussion implicated the Eighth Amendment. First, a majority of the Reconstruction Congress believed that a constitutional amendment was necessary to grant them the authority to apply the protections of the Bill of Rights to the states. Second, members of Congress began to conceive “cruel and usual punishment” as encompassing discriminatory punishment that subordinated Black people.

The Reconstruction Amendments were designed to shift the balance of power by authorizing the federal government to enforce the Bill of Rights against states.[343] The original Framers had conceived of the Bill of Rights as constraints only on the power of the federal government.[344] States had enacted their own constitutions to protect the rights of the people from the state’s excesses.[345] The Reconstruction Amendments, however, explicitly limited the powers of the states.[346] This was not a constitutional carve out—it was a constitutional reorientation that stemmed from a post-Civil War surety that national sovereignty topped state sovereignty.[347] Discussions at the time made clear that Congress viewed the Fourteenth Amendment as a vehicle to apply the Bill of Rights to the states.[348] Congressman John Bingham, one of the Amendment’s drafters, explicitly characterized the Fourteenth Amendment as a way to apply the Eighth Amendment to the states:

Contrary to the express letter of your Constitution, ‘cruel and unusual punishments’ have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.[349]

Congressional conversations also revealed that conceptions of unconstitutional punishment were expanding to include punishment disproportionately levied against Black people. In his support of the Fourteenth Amendment, Senator Jacob Howard of Michigan characterized its rights-enforcement potential against states in terms of punishment: “[The Amendment] prohibits the hanging of a [B]lack man for a crime for which the white man is not to be hanged. It protects the [B]lack man in his fundamental rights as a citizen with the same shield which it throws over the white man.”[350] During these discussions, representative John Kasson of Iowa proposed that Congress pass a bill to prevent the states from inflicting cruel and unusual punishments on Black people:

I admit that the system of torture as applied to slaves did exist in certain parts of the United States, but I deny that the infliction of physical torture upon those who are endowed with the rights of citizenship is usual. The attempt is now being made to carry over this incident of the condition of slavery and apply it to those who are now in freedom, full citizens of the United States of America, and endowed with the personal rights that belong to any other class of its citizens. I believe it, therefore, to be the duty of the Congress of the United States to take early action to prevent what is now both cruel and unusual from becoming simply cruel and usual.[351]

John Bingham responded, “So far as we can constitutionally do anything to prevent the infliction of cruel punishments by State laws I wish to see it done,” but implied Congress’s power to enforce federal rights against the states was in doubt until the ratification of the Fourteenth Amendment.[352] In the meantime, the Freedmen’s Bureau went so far as to take over the administration of a portion of the criminal justice system from Southern states, creating a different judicial system for newly freed enslaved people.[353]

These discussions reveal that the Reconstruction Congress intended the Fourteenth Amendment, among other things, as a mechanism not only to apply the Eighth Amendment to the states, but to do so for the specific purpose of protecting Black people from punishment entrenching racial subordination.

2.     Structure

A structural reading of the Constitution also lends support to an antisubordination interpretation of the Eighth Amendment. A structural approach considers what logically flows from the system of government described in the Constitution. Under this approach, interpretation does not depend on any part of the text in isolation.[354] Instead, meaning is inferred from the “overall arrangement” of the document.[355] This approach recognizes that the Constitution necessarily contemplates the relationship between fundamental institutions.[356] Legislation that disrupts these relationships violates the Constitution.[357]

Examination of the document in full reveals both an emphasis on the government’s power to punish and a commitment to constraining that power. The Constitution as a whole imbues the government with the most extreme power: to impose violence on its people through punishment. The power to punish is specifically referenced not only in the Eighth Amendment[358] but also in Articles I and III, which expressly grant Congress the power to punish impeached officials,[359] its own members,[360] counterfeiters,[361] pirates,[362] and treasonists.[363] While the Eighth Amendment directly addresses the punishment power, several of the preceding amendments implicitly address it.   The Fourth, Fifth, and Sixth Amendments act in service of the Eighth Amendment, because they detail the procedures the government must follow to impose punishment on an individual. The Due Process Clause of the Fourteenth Amendment applies these same procedures to enable states’ punishment power.

But alongside the punishment power, the Constitution also contemplates the check of political participation. Article I explains that the people express their supremacy by electing representatives.[364] Meaningful political participation is a central structural feature of democratic government because it is the mechanism by which people hold government accountable. Punishment that lessens popular political power and leaves disfavored groups to the mercy of the state violates this foundational premise. The government is no longer accountable to them. Consequently, a structural modality supports an antisubordination interpretation because the latter girds against political marginalization and protects democratic participation. It perpetuates popular sovereignty. An Antisubordination Eighth Amendment guarantees the government’s power to punish but does so consistent with the values of democratic participation. Put another way, because punishment that entrenches racial caste cannot coexist with preservation of meaningful political participation, it is unconstitutional.

Other constitutional provisions also signal an intent to substantively constrain the punishment power.[365] The Eighth Amendment’s cruel and unusual punishment ban makes clear that the government cannot impose whatever form of punishment it wishes. The prohibition against bills of attainder illustrates a commitment against singling out individuals for punishment.[366] Forbidding corruption of the blood as a punishment for treason reveals the belief that one’s family should not be punished for one’s crimes.[367] Similarly, while the Fourth, Fifth, and Sixth Amendments facilitate punishment, they also constrain it by imposing procedural requirements on the Government.

The Second Founding marked a constitutional reorientation and a new vision of the federal government as a guarantor of fundamental rights.[368] The Reconstruction Amendments contain values—such as the scope of the government’s punishment power—that substantively impact these rights. A structural interpretation recognizes that the Reconstruction Amendments imbued the Constitution with affirmative commitments to equality, meaningful political participation, and caste dismantlement. These Amendments constrained the government from exercising its punishment powers to perpetuate or create racial caste. Government has an obligation to protect these values.

Finally, the Constitution rests on a presumption that the Government must exercise its powers rationally. Thus, punishment that—intentionally or unconsciously—turns on the morally irrelevant (and thus irrational) characteristic of race is a presumptively illegitimate exercise of Government power.

In sum, under a structural approach, an Eighth Amendment interpretation that permits racially subordinating punishment violates the Constitution in two respects. First, punishment that subordinates is unconstitutional because it undermines the foundational structures of popular sovereignty. Second, it is unconstitutional because it violates values of racial equality and caste dismantlement—the central changes in cultural ethos that the Reconstruction Congress expressed as constraints on government power.

3.     Doctrine

Despite its flaws, several aspects of the Supreme Court’s Eighth Amendment jurisprudence provide support for an antisubordination interpretation. These include the evolving standards of decency test, the Court’s capital proportionality jurisprudence, and even the individualized sentencing requirement. While none of these is inherently an antisubordination doctrine, each exhibits values consistent with antisubordination theory.

Although the evolving standards of decency test has morphed over time into a two-part implementation rule, it began as a much more flexible guideline that the Court should consider contemporary values when assessing the constitutionality of punishment. In the 1910 case of Weems v. United States, the Court held that a sentence of up to fifteen years of shackled labor violated the Eighth Amendment when imposed as punishment for falsification of government documents.[369] In finding the punishment cruel and unusual, the Court explained that the general language of the punishment clause signaled a dynamic meaning: “[G]eneral language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth.”[370] In 1958’s Trop v. Dulles, the Court underscored that the scope of the Eighth Amendment was “not static” and that the punishment clause “dr[ew] its meaning from the evolving standards of decency that mark the progress of a maturing society.”[371] This principle conferred an organic quality on the Eighth Amendment, suggesting that determining whether a punishment was cruel and unusual was a matter of contemporary values.

This doctrinal rejection of originalism and incorporation of modern morality is consistent with an antisubordination interpretation of the Eighth Amendment. Contemporary society has identified racial subordination as one of the harms of mass incarceration and mass surveillance.[372] The Supreme Court has the capacity to address this harm using evolving standards of decency as guidance.

The Court’s death penalty proportionality jurisprudence provides additional support for an antisubordination interpretation. As I have noted in prior work and above, application of the evolving standards of decency test in the Court’s death penalty proportionality jurisprudence has had a racially subordinating impact because it prioritizes majoritarian practices at the expense of minority rights.[373] However, the Court’s death penalty jurisprudence also creates a precedent for group-centered analysis. The Court’s rulings in this arena have been categorical—meaning they apply to designated groups of people. When the Court has exempted an individual member of these groups from a particular punishment, the decision is understood to apply to all members of the group. These groups have included children, intellectually disabled people, and mentally incompetent people.[374] Membership in these groups is a proxy for reduced culpability, with the Court designating children and intellectually disabled people as more vulnerable and thus less blameworthy.[375]

While membership in a racial category does not have any relationship to an individual’s culpability, it does statistically lead to greater punishment for Black people.[376] Thus, for sentencing purposes, Black people as a group are treated as “extra” culpable. Their excessive sentences are disproportionate to their culpability. Historically subordinated groups are sentenced more harshly and they also lose political power. Because they also have historically had little political power to begin with—and thus are more vulnerable—their punishment is compounded. The Court’s death penalty proportionality jurisprudence provides a tether for finding such sentences unconstitutional because they are inherently disproportionate to a group’s culpability.

Finally, the Eighth Amendment’s individualized sentencing requirement provides a counter-intuitive doctrinal tether for an antisubordination interpretation. The individualized sentencing requirement refers to the Supreme Court’s mandate in death penalty cases that a sentencer consider the characteristics of an individual defendant and the circumstances of their crime before imposing sentence.[377] When an individual belongs to a group that is historically subordinated, there is reason—and likely data—to conclude that conscious or unconscious bias against the group factored into the sentencing decision. When an individual receives an increased sentence based on group membership, they are not being sentenced as an individual. Their punishment is not a reflection of their individual culpability or the harm that they caused. The individualized sentencing requirement thus serves as a third possibility for doctrinal grounding of an antisubordination approach.

4.     Prudence

While some Justices claim to limit their constitutional analysis to the interpretative modalities described above, most scholars agree that almost all Justices also factor in pragmatic concerns.[378] Phillip Bobbitt has argued that many judges engage in a “prudential modality” of constitutional interpretation, determining constitutional meaning by engaging in a cost-benefit analysis of practical concerns.[379] This modality is typically tied to the present and becomes more dominant in instances of perceived emergency.[380]

Particularly given the popular recognition of mass incarceration as a policy failure that constitutes a national crisis,[381] a prudential interpretation also supports an antisubordination approach to the Eighth Amendment. The potential societal benefits of applying an antisubordination principle to Eighth Amendment interpretation are significant. To begin with, such an interpretation could serve as one remedy for the racial subordination our current model of punishment has entrenched, discussed in greater detail in Part I. As it currently functions, punishment contributes to a fundamentally unequal society where disfavored groups are stripped of voice, economic security, and political power. Not only does this practice raise moral questions, but it also threatens the success of democratic government. The subordination of disfavored groups undermines political promises of egalitarianism, economic mobility, and democratic voice. Not only do these outcomes delegitimize the criminal punishment system, but they also raise fundamental questions concerning the role of the judiciary in protecting minority rights and the relevance of the Constitution to modern governance.[382]

Bobbitt has observed that Courts applying a prudential interpretation often formulate balancing tests—of which strict scrutiny is one—to weigh the societal interests at play.[383] In the Eighth Amendment context, an antisubordination interpretation would require courts to balance the depth of the societal harm of caste perpetuation against the strength of the government’s interest in imposing punishment on an individual. Such a test would invalidate punishments that entrench racial hierarchy absent a compelling government interest in doing so. This approach has the potential to reinvigorate the role of the Constitution and of the courts as partial solutions to this societal crisis. It could meaningfully address racially disparate sentencing and restore political power to disfavored groups. A Supreme Court applying such an interpretation could also potentially reclaim the position of moral leadership that it held after Brown v. Board of Education and revitalize its role as protector of minority rights more generally.[384]

* * *

Given that the Justices typically engage in multiple modalities of constitutional interpretation, there is firm ground for an Antisubordination Eighth Amendment. The Eighth Amendment can be a viable remedy for the racially subordinating harm of the modern punishment system. In the next Section, I will explore some implications of an Antisubordination Eighth Amendment before addressing potential objections and limitations.

IV. The Antisubordination Eighth Amendment

What are the implications of an Antisubordination Eighth Amendment? How might it operate? What are its limitations? In this Section, I sketch out some basic parameters of an antisubordination interpretation of the Eighth Amendment and consider how it would impact current doctrine. I then explore what applying strict scrutiny to subordinating punishment could look like in practice. I conclude by addressing several potential objections and limitations of the project.

A.     Implications

1.     Eighth Amendment Doctrine

Pursuing an antisubordination interpretation of the Eighth Amendment would have several broad implications for existing Eighth Amendment doctrine. First and foremost, an antisubordination interpretation would replace the evolving standards of decency as the dominant mechanism for determining whether a punishment is cruel and unusual. Instead, an antisubordination approach would equate punishment that created, perpetuated, or entrenched racial caste with punishment that is cruel and unusual. Courts would apply strict scrutiny to such punishments. The test would be impact focused; it would not require claimants to show discriminatory intent. A showing of racially disparate impact would be enough to receive strict scrutiny because it would demonstrate that—intentionally or not—race factored into a governmental decision (punishment) that further entrenched racial subordination.

Beyond replacing the dominant test for evaluating cruel and unusual punishments, an antisubordination interpretation of the Eighth Amendment would make three critical doctrinal changes. First, an Antisubordination Eighth Amendment would recenter race in place of arbitrariness.[385] This change rectifies the mistakes of Furman Court, which attempted to avoid controversy by focusing on arbitrary, rather than racially discriminatory, sentencing outcomes.[386] It also accurately reflects the centrality of race in creating and entrenching group status in America. It stems from the normative conclusion that systemic racial subordination—not a few outlier sentences—is the primary structural harm of the criminal legal system.

Second, an antisubordination interpretation would put an end to the Court’s “death is different” jurisprudence.[387] It would not distinguish between capital and noncapital sentences because these sentences are not meaningfully different when it comes to group subordination. Both types of sentences can result in the total removal of a group member from the polity. Both weaken group economic and social status. Due to their sheer numbers, noncapital sentences have a more significant impact on group subordination than their capital counterparts.[388]

Third, an antisubordination approach necessarily conceives of collateral consequences as punishment.[389] This recognizes the fact that collateral consequences are the legal link between criminal sentencing and group subordination. Collateral consequences ensure permanent or nearly permanent disadvantage in political participation, employment, education, housing, and benefits. They can also have a lasting impact on parental rights and citizenship status. These consequences create social stigma through conviction branding, disclosure requirements, and public registration. An antisubordination interpretation that fails to acknowledge these consequences as punishment would have limited impact on the dismantlement of racial caste.

2.     Strict Scrutiny in Practice

Such significant doctrinal changes raise the question of how an Antisubordination Eighth Amendment strict scrutiny test would operate in practice. How exactly should a court strictly scrutinize punishment? New constitutional formulations often raise more questions than they answer, and the Court frequently leaves questions of line-drawing to percolate in the lower courts before settling on definitive parameters. Nevertheless, having proposed a new theory of Eighth Amendment interpretation, I now broadly consider the form it might take in practice to demonstrate its workability. In doing so, I acknowledge that some of my choices could benefit from a more full-throated explanation than the scope of this Article allows.

Most fundamentally, an Antisubordination Eighth Amendment would require the Court to strictly scrutinize punishments deemed “unusual” in application. Punishments that are unusual in application are those that entrench group subordination through a disparate impact on historically subordinated racial groups.[390]

Following imposition of sentence,[391] a criminal defendant belonging to a historically subordinated racial group could make a prima facie showing of disparate impact.[392] Disparate-impact claims do not require any showing of intentionality, but instead are outcome focused.[393] Evidence of disparate impact reveals that a sentencer has, intentionally or not, taken a person’s subordinate status into account to impose a punishment that further fixes this status.[394] A presumption against these punishments is appropriate because an individual’s subordinate status does not increase their culpability or make them more worthy of punishment.

Upon a successful showing of disparate impact, the Court would undertake a “cruelty” analysis. The government would have the opportunity to assert a compelling penological interest in the punishment.[395] Then, the Court would apply strict scrutiny to the punishment at issue by determining whether it constituted the “least restrictive means” to advance the stated penological goal.

Here, the least restrictive means language encapsulates the level of constitutionally acceptable constraint on liberty. Courts must determine if the state might achieve its stated penological interest with less of an intrusion on a person’s liberty than the sentencer imposed. The test is grounded in the principle of parsimony, which limits the state’s power to punish to the necessary minimum.[396] Although parsimony as a sentencing principle originated with eighteenth-century philosophers,[397] the “least restrictive means” language has not appeared in Eighth Amendment jurisprudence. However, parsimony does appear in other areas of contemporary constitutional and statutory law, including criminal law.  The Court has employed the concept in the Free Speech and Free Exercise contexts. [398]

It has also appeared in statutes related to religious freedom[399] and, more recently, to bail determinations, which require trial courts to set the least restrictive conditions of bail to ensure the defendant’s appearance in court, to protect public safety, or both.[400] Parsimony also appears as a guideline in the U.S. sentencing code, although it is rarely enforced.[401]

As applied to unusual punishment under an antisubordination approach, the least restrictive means standard would amount to a presumption against punishments that disparately impact historically subordinated groups. The standard would require judges to assess whether less arduous punishment or collateral consequences could reasonably achieve the government’s stated compelling interest. The burden of proving that the punishment at issue is the least restrictive would fall on the government. In evaluating whether a punishment is the least restrictive, courts could consider alternative punishments that the state has authorized for the crime; past punishments; or punishments in other jurisdictions.[402] Punishments found to be more restrictive than necessary would be considered unconstitutionally “cruel” and subject to resentencing.

The test has the potential to reduce racially disparate sentencing both upstream and downstream. Upstream, the test might persuade some judges to exercise leniency when sentencing members of historically subordinated groups because longer sentences could be used as evidence of disparate impact. Downstream, criminal defendants who do receive racially disparate sentences—like K.H., who appears in the opening paragraphs of this Article—would have meaningful recourse, even if they could not show the judge acted consciously in imposing such a sentence.

3.     Opportunities for Extension

This Article presents an initial conception of an antisubordination interpretation of the Eighth Amendment based on racial subordination as a jumping-off point. It is meant to spark conversation and to encourage other scholars to take up the question of whether and how the theory should be extended.

In this Article, I have focused on the racially subordinating nature of the criminal punishment system because race is the most salient of the axes of subordination in the United States. Specifically, Black people are the paradigmatic subordinate group in the United States and have suffered the most harm from the mass punishment system. My focus on anti-Black racism does not mean to imply that an Antisubordination Eighth Amendment could never apply to other historically subordinated groups, including other people of color, women, the LBGTQ community, and disabled people, should they be able to make a case that criminal punishment entrenches their subordination. I also acknowledge that my identification of the primacy of race in caste-creation sidesteps questions of intersectionality—the concept that people experience subordination differently based on their various identities.[403] For example, Black women experience the oppression of the criminal punishment system differently than Black men, while Black disabled men have a distinct experience from Black nondisabled men.[404] It is possible that a comprehensive Antisubordination Eighth Amendment could doctrinally encapsulate these experiences.

It is also possible that an Antisubordination Eighth Amendment could apply to new castes that extend beyond what the law has recognized as traditional suspect classes. Scholars like Michelle Alexander have argued that the criminal legal system is itself caste creating.[405] Punishment constructs caste through the consequences that flow from the marker of a criminal conviction. Society compels identification as a member of a “penal caste” by mandating disclosure of one’s criminal history for employment, education, public benefits, and familial purposes. As with other castes, membership in the penal caste is determined by how society treats those it identifies as members.

A third possible extension of an Antisubordination Eighth Amendment is one that considers not only a defendant’s group membership, but also the relationship between the defendant’s group membership and the group membership of the defendant’s victims. In many cases the most extreme disparate sentencing is experienced by members of a subordinate group whose victims are members of the dominant group.[406] Here, again, the paradigmatic case is one of a Black defendant sentenced for killing a white victim. It is well documented that Black defendants convicted of killing white victims receive harsher sentences than Black defendants convicted of these crimes generally or than other defendant-victim combinations.[407] This reality compounds Black subordination by creating two signaling effects: that Black lives do not matter and that white lives matter most. It also reinforces stereotypes of Blackness as criminality and dangerousness and whiteness as innocence and victimhood.[408] An Antisubordination Eighth Amendment that factored in victim identity could serve as a corrective measure for these tendencies.

These potential extensions each raise their own questions of desirability and operability and thus are deserving of their own scholarly analysis. I raise them here in hopes of inspiring future conversations concerning what additional groups could and should fall under the scope of an Antisubordination Eighth Amendment.

B.     Objections and Limitations

Given the transformative potential of an Antisubordination Eighth Amendment, objections are inevitable. In this Section, I anticipate and respond to several potential theoretical and pragmatic critiques.

1.     Constitutional v. Legislative Solutions

Some critics may wonder why solving racially disparate sentencing is the domain of the courts instead of the legislature. Why should the solution be constitutional instead of legislative?

Legislation is unlikely to remediate group subordination because legislation is the product of democratic majorities.[409] Subordinate castes are, by definition, politically powerless. With fewer resources, less social capital, and lower rates of enfranchisement, subordinate castes cannot form meaningful coalitions with larger groups. Dominant groups benefit from the social hierarchy and thus lack incentives to pass legislation altering that hierarchy. This does not mean such laws are never passed, but it does mean that few are passed; their scope is often limited; and their success is rare. Only three states have enacted racial justice acts to date: Kentucky in 1998,[410] North Carolina in 2009,[411] and California in 2020.[412] The Kentucky and North Carolina laws limited their scope to capital sentences.[413] The Kentucky act only applies prospectively and requires claimants to demonstrate that racial considerations significantly impacted the decision to seek or impose death in their specific case.[414] And the North Carolina legislature repealed its Racial Justice Act four years after enacting it, when a different party came to power.[415] The legislative repeal was explicitly retroactive, seeking to nullify all existing legal claims under the Act.[416]

The most expansive racial justice act in the country was enacted in California in 2020. The California act prohibits conviction or sentence on the basis of race, national origin, or ethnicity for any crime.[417] In 2023 the California law was given retroactive effect.[418] It is too soon to determine the impact of California Racial Justice Act, as only one case, which denied relief, has been published.[419] Early commentators have expressed concern that the Act’s requirement that evidence demonstrate “a ‘significant difference’” in convictions or sentencing across race when comparing “similarly situated” individuals with “similar conduct” has confused courts and advocates.[420] While the California Racial Justice Act has the potential to bring about meaningful change, there is also a chance it will fall prey to an administration change or to California’s much-criticized voting referendum system.

As I discussed in detail in a prior work, the protection of minority rights should not be subject to the preferences of the majority or the whims of the whichever political party is in power.[421] A countermajoritarian judicial approach is necessary to address this structural defect of democracy.[422] The criminal punishment system implicates the rights of vulnerable minorities who lack political power and who are socially stigmatized by their involvement in the criminal legal system. The Court must interpret the Constitution to meaningfully protect these rights from the excesses of state legislatures. An Antisubordination Eighth Amendment provides a nationwide solution to a pervasive, structural problem.

2.     The Eighth v. The Fourteenth Amendment

Assuming that a constitutional solution is necessary, one might wonder why that solution should lie in the Eighth Amendment instead of the Fourteenth Amendment. Put another way, why theorize an Antisubordination Eighth Amendment when antisubordination theory is already well developed in the Fourteenth Amendment context?

There are several responses to this query. Most simply, an Antisubordination Eighth Amendment remedy does not preclude a Fourteenth Amendment one. The Supreme Court has made clear that “[c]ertain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution’s commands.”[423] And while the Court has explicitly moved away from an antisubordination interpretation of the Fourteenth Amendment over the last five decades,[424] it has yet to consider one of the Eighth Amendment.[425] Why might the Court consider an antisubordination interpretation of the Eighth Amendment when it seems to have rejected one of the Fourteenth? One answer has to do with the singularity of the Eighth Amendment. Unlike the Fourteenth Amendment, which theoretically applies to all legislation, the Eighth Amendment constrains the ultimate power of the government—the ability to inflict violence on its people. The government has historically imposed that power on its most vulnerable, making punishment the government action that carries the greatest power differential. The structure of the Constitution itself suggests the Founders’ commitment to limit that power:  the Fourth, Fifth, Sixth, and Fourteenth Amendments all added additional procedural and substantive constraints to the punishment power. Under these circumstances, a future Court may be willing to take a more robust approach to protect minority rights than it has under the much broader Fourteenth Amendment. Using the Eighth Amendment, the Court could apply a remedy with a laser focus on the most extreme form of subordination without taking on the broader implications of an Antisubordination Fourteenth Amendment.

Another possible response is that the Court could apply an antisubordination interpretation only to instances where the Eighth and Fourteenth Amendment intersect. Kerry Abrams and Brandon Garrett have defined “intersectional” constitutional rights as those that “gain meaning when heard together and amplify the cognizable harm.”[426] In instances where two constitutional rights augment each other, the Court frequently applies heightened scrutiny.[427] Rights treated as intersectional have historically included fundamental rights and equal-protection rights.[428] The Court has historically entwined Eighth Amendment punishment jurisprudence with Fourteenth Amendment conceptions of due process and equal protection.[429] An antisubordination interpretation of the Eighth Amendment presents another opportunity for the Court to apply heightened scrutiny to laws that implicate both the Eighth Amendment’s fundamental liberty interest and the racially disparate impact of its deprivation.

3.     What About the Thirteenth Amendment?

The Thirteenth Amendment famously forbids slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”[430] Critics of an Antisubordination Eighth Amendment might ask: If slavery and involuntary servitude are constitutionally permissible outcomes of the criminal punishment system, does it not follow that group subordination is also constitutionally permissible?

When it comes to racial subordination the answer is unambiguously “no.” The passage of the Fourteenth Amendment was influenced by the South’s use of the Black Codes to reinstitute racialized slavery.[431] The Reconstruction Congress saw the Fourteenth Amendment as granting Congress the authority to pass legislation to thwart such attempts.[432] Moreover, the Supreme Court has made clear that the Thirteenth Amendment specifically eradicated race-based slavery: “[T]he obvious purpose was to forbid all shades and conditions of African slavery.”[433]

Moreover, as legal scholar Daniel Correa has argued, the Thirteenth Amendment’s punishment exception had a “pragmatic rationale”: to “affirm government’s existing penal power and acknowledge the obvious restraint on freedom imposed on a convict when government exercises that power.”[434] Correa explained that the punishment exception seeks only to make note that “[s]tate penal power falls within the purview of essential government powers the Thirteenth Amendment did not intend to interdict.”[435] Accordingly, the Thirteenth Amendment does not post a meaningful constitutional barrier to an Antisubordination Eighth Amendment.

4.     Practical Barriers

Cynics may be tempted to conclude that, while interesting in theory, an Antisubordination Eighth Amendment is unlikely to prevail in practice. These critics would likely make three points. First, stare decisis is a substantial barrier to change in Eighth Amendment interpretation. Second, an antisubordination interpretation would have administrative difficulties. Third, the current conservative supermajority on the Supreme Court is unlikely to adopt a new, nonoriginalist approach. I respond to each objection in turn.

a.   Stare Decisis

An antisubordination interpretation of the Eighth Amendment would require deviation from the Court’s proportionality precedent. The two cases most directly implicated are McCleskey v. Kemp[436] and Harmelin v. Michigan.[437] McCleskey notoriously held that racially disparate capital sentencing in Georgia did not violate the Eighth Amendment,[438] while Harmelin found that noncapital cases were not entitled to the same robust proportionality review afforded to capital cases.[439]

First, as a normative matter, both cases are bad decisions that should be overruled. Both involved a starkly divided Court,[440] and both are the subject of extensive scholarly criticism.[441] As I discussed in detail in Part I.B, each decision contributed to an Eighth Amendment doctrine that has itself furthered racial subordination.

Second, it is uncertain that the Court would even need to formally overrule either case in order to adopt an antisubordination interpretation of the Eighth Amendment. Meghan Ryan has argued that stare decisis is unique in the Eighth Amendment context because “the prevailing standards of decency vary with each passing moment, thus making each Supreme Court holding confined to its specific ‘external facts’ and distinguishable from many new death penalty cases.”[442] The technical holdings of both McCleskey and Harmelin are narrow and distinguishable on their facts. McCleskey held that a statistical study of capital punishment outcomes in Georgia in the 1970s failed to prove that racial bias was a factor in the defendant’s sentencing in a way that implicated the cruel and unusual punishment clause.[443] Harmelin held that a mandatory sentence of life without parole did not violate the Eighth Amendment when imposed on a Michigan man convicted of possessing 672 grams of cocaine.[444] Much of the additional language about the larger role of the Eighth Amendment could be dismissed as dicta by a Court reluctant to directly overrule the cases. [445]

Third, stare decisis no longer imposes an insurmountable barrier in a world post-Dobbs v. Jackson Women’s Health Organization.[446] In Dobbs, the Court overturned a fifty-year-old precedent guaranteeing a fundamental right of substantive due process,[447] and a concurring Justice indicated that other such rights might soon be on the chopping block.[448] Justice Alito’s opinion enumerates the factors that the Justices consider when contemplating the abandonment of stare decisis.[449] They are: (1) “the nature of the[] error” in prior cases; (2) “the quality of their reasoning”; (3) “the ‘workability’ of the rules they imposed on the country”; (4) “their disruptive effect on other areas of the law”; and (5) “the absence of concrete reliance.”[450] While a robust discussion of these factors is beyond the scope of this Article, the flexibility with which the Court applied them in Dobbs suggests that neither McCleskey nor Harmelin is likely to find shelter under the test.[451]

Consequently, stare decisis does not prove an insurmountable barrier for Justices who desire an antisubordination interpretation of the Eighth Amendment, even if they believe that implementing one would require overturning McCleskey and Harmelin.

b.     Administrability

A second pragmatic objection to an antisubordination interpretation of the Eighth Amendment is that it could bring about the floods of litigation that Justice Powell so feared would have resulted from a grant of relief in McCleskey.[452] To some extent, these fears are warranted. An Antisubordination Eighth Amendment is intentionally robust because it is designed to remedy the longstanding structural harms of racial subordination and caste. It is meant not merely to adjust sentencing around the edges, but to transform the criminal punishment system.[453]

That said, braking mechanisms would exist in the doctrine. Establishing racially disparate punishment would likely require a complex statistical showing that may not be within the reach of every impacted criminal defendant.[454] Instead, nonprofit groups, institutional defenders, and researchers would likely drive litigation on behalf of groups of similarly impacted defendants by identifying and litigating test cases. These advocates would identify a member of a historically subordinated group in receipt of disproportionate punishment and present them as test cases, raising an Eighth Amendment claim on their behalf. This categorical approach would lead to less and more efficient litigation than a case-by-case approach. It is also possible that robust litigation will incentivize states to enact, as a preventative measure, racial impact legislation[455] that assesses the effects of their penal laws and seeks to improve outcomes.

c.      The Political Leanings of the Current Court

An Antisubordination Eighth Amendment is likely a nonstarter with the conservative supermajority on the current Supreme Court. Most of these Justices have embraced originalism as an interpretive philosophy,[456] and many have expressed hostility to antisubordination themes in the equal protection context.[457]

The improbability of immediate application does not extinguish the value of an Antisubordination Eighth Amendment. The three liberal Justices have made statements consistent with antisubordination theory.[458] While they currently lack the numbers to shift the direction of the Court, their dissents can lay the groundwork for a future Court’s embrace of antisubordination in the way that the dissents of conservative Justices have laid the groundwork for a turn to originalism.[459] State court judges are also a potential audience. State constitutional analogues of the Eighth Amendment often contain broader language,[460] which state courts have relied on to bestow greater Eighth Amendment protection.[461] State court judges need not wait for a more progressive Supreme Court to apply an antisubordination lens to Eighth Amendment interpretation.

5.     Unintended Outcomes

A final concern is that implementation of an Antisubordination Eighth Amendment could have unintended—and undesired—consequences.

First, states confronted with evidence that their penal laws result in disparate punishment for subordinate groups might be tempted to remedy this problem by increasing the punishment for dominant groups. Even if this does not occur at the state level, individual sentencers might choose to factor dominant status into their sentencing calculus as a “corrective” measure. The result would ratchet up punishment for everyone, creating a criminal punishment system that is more punitive and more carceral—hardly a desirable result for a nation that is already the world’s top incarcerator.[462]

While a leveling up of punishment is a possible initial response, it is unlikely to have staying power. An antisubordination approach links the experience of the majority to the experiences of minority groups. Once the members of the majority are subjected to harsher punishments, they can use their political power to change sentencing laws democratically.[463] By design, antisubordination theory brings minority groups to the level of the majority, rather than the other way around. As a result, punishment length should decline for everyone over time.

Counterintuitively, a second unintended outcome might be the legitimation of a still-flawed criminal punishment system. If implemented properly, an Antisubordination Eighth Amendment would upend punitive racial subordination. Courts would grant relief to racial groups suffering from disproportionate or permanent punishment, and states would be incentivized to study the impact of their penal laws, reduce the length of their sentences, and time-limit any collateral consequences to avoid potential litigation. In short, incarceration would be less massive and less discriminatory, but it would also almost certainly continue to exist. These outcomes may not satisfy abolitionist scholars who contend that a fairer, less subordinating criminal legal system simply legitimizes mass caging and dehumanization across different metrics.[464]

But an Antisubordination Eighth Amendment need not be an end goal. It is not intended as a cure-all for the harms of mass incarceration. Instead, it is one implementation of a larger interpretive shift from a Constitution that maximizes democracy to one intended to gird against democracy’s structural flaws; from a Constitution that reinforces racial hierarchy to one that could unravel it; from a Constitution that serves individuals in isolation to one that could restore and redistribute power to groups long deprived of it. In that vein, an Antisubordination Eighth Amendment has the power to be transformative.

Conclusion

The modern criminal punishment system perpetuates racial subordination and creates and entrenches caste. Yet these harms are not inevitable. A constitutional solution exists in the Eighth Amendment, drawing inspiration from the antisubordination principle of the Fourteenth Amendment’s Equal Protection Clause. The text, history, structure, jurisprudence, and theory of the Eighth Amendment support an interpretation of the punishment clause that requires the Court to strictly scrutinize punishments that disproportionately impact Black people and other historically subordinated groups. In a world where punishment is increasingly massive and permanent, an Antisubordination Eighth Amendment is both a possible and a necessary corrective.

Copyright © 2024 Kathryn E. Miller, Associate Professor of Law, Cardozo Law School. Thank you for the helpful conversations, support, and comments from: Ty Alper, Kristen Bell, Eric Berger, Will Berry, Jacob Bronsther, Jenny Carroll, Orion Danjuma, Brittany Deitch, Cara Drinan, Michelle Ewert, David A. Gilman, Betsy Ginsberg, Daniel Harawa, Kyron Huigens, Irene Oritseweyinmi Joe, J.D. King, Alexandra Klein, Guha Krishnamurthi, Katie Kronick, Corinna Barrett Lain, Christopher Lau, Daniel Loehr, Rachel López, Alma Magaña, Zina Makar, Jamelia Morgan, Michael Pollack, Lindsay Nash, Alex Reinert, Meghan Ryan, Marissa Jackson Sow, Stewart Sterk, Saurabh Vishnubhakat, Madalyn Wasilczuk, and the participants of the Decarceration Law Professors Works in Progress Workshop, the Richmond Law Junior Scholars Workshop, Crimfest, and the Cardozo Junior Faculty Forum.

           [1].     Michael Harriot, Ohio Court Sentences Black Woman to 18 Months in Prison the Day After Giving White Woman Probation for Same Crime, Root (Aug. 9, 2021), https://www.theroot.com/ohio-court-sentences-black-woman-to-18-months-in-prison-1847451421 [https://perma.cc/B2PC-D3VU]; Cory Shaffer, White Woman Who Stole $250K Gets Probation, While Black Woman Who Stole $40K Goes to Jail. Disparate Sentences Spark Calls for Reform, Cleveland.com (Aug. 9, 2021), https://www.cleveland.com/court-justice/2021/08/cuyahoga-county-judges-disparate-sentences-for-white-black-women-who-stole-public-money-sharpens-calls-for-statewide-sentencing-database.html [https://perma.cc/6NFF-KH6J]. After the disparate sentences received media attention, Black faith leaders publicly called for, and ultimately achieved, K.H.’s release from prison. Andrew Welsh-Huggins, Woman’s Release from Prison Comes amid Focus on Sentencing, Associated Press (Sept. 15, 2021), https://apnews.com/article/ohio-cleveland-sentencing-a118f5eed1db6a29ab60b020533cd53a [https://perma.cc/ZG4J-8XF6].

           [2].     Harriot, supra note 1.

           [3].     Id.

           [4].     Shaffer, supra note 1.

           [5].     Harriot, supra note 1.

           [6].     Id.

           [7].     Biba Adams, Ohio Leaders Decry Black Woman’s Prison Sentence After White Woman Gets Probation for Similar Crime, TheGrio (Aug. 10, 2021) (indicating K.H. has no prior criminal history), https://www.yahoo.com/news/ohio-leaders-decry-black-woman-172200101.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAK2l7HEjSolZ_MVywRZMCdowIFPv4mE4hycWo_6EHg0tkyPctdOrr6Tnq9V8IQ_t3WhQOil6UASWdFzYtOj-l-dIA7eFiqqVpJvePL-uHb5mfB-5dFR3vIWFdnq0x9jnpSDKxOj9NQIqvZGAMWNpt37ODAU2w9qto3X5JsuIGHNP [https://perma.cc/U77R-SLAS]. There is no indication that  D.B. had a criminal record at the time of her sentencing: the judge did not reference any prior history when imposing sentence, see sources cited supra note 1, and it is unlikely that the judge would have used his discretion to sentence D.B. to a non-carceral sentence if she had such a record. See Ohio Rev. Code Ann. § 2929.14(3) (West 2023) (indicating the sentencing range for third degree felonies when a defendant has a previous conviction); Ohio Rev. Code Ann. § 2929.12 (West 2014) (specifying lack of a criminal history as a sentencing factor supporting leniency). Of course, if D.B. did have a prior criminal history, her sentence of probation is even more inequitable to K.H.’s sentence of incarceration.

           [8].     Harriot, supra note 1.

           [9].     Id.

         [10].     Paul Butler, Equal Protection and White Supremacy, 112 Nw. U. L. Rev. 1457, 1457 (2018) (“Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system.”).

         [11].     See, e.g., McCleskey v. Kemp, 481 U.S. 279, 286­–87 (1987) (discussing results of the Baldus Study, which found racial disparities in the imposition of the death penalty in Georgia in the 1970s).

         [12].     See, e.g., Ellis P. Monk, The Color of Punishment: African Americans, Skin Tone, and the Criminal Justice System, 42 Ethnic & Racial Stud. 1593, 2–7, 12, 15 (2019) (finding that disparities in incarceration rates between white and Black men are exacerbated among Black men with darker skin tones); U.S. Sent’g Comm’n, Demographic Differences in Sentencing: An Update to the 2012 Booker Report 2 (2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171114_Demographics.pdf [https://perma.cc/794P-SRSL] (finding that Black men receive sentences that are nearly 20 percent longer than similarly situated white men); Traci Burch, Skin Color and the Criminal Justice System: Beyond Black-White Disparities in Sentencing, 12 J. Empirical Legal Stud. 395, 408 (2015) (finding in a study of first-time felons that Black men overall received sentences 270 days longer than similarly situated white men and that dark-skinned Black men received sentences 400 days longer than similarly situated white men).

         [13].     U.S. Sent’g Comm’n, supra note 12, at 2.

         [14].     Jessica Larche, Data Shows Black Men Receive Harsher Punishments Than Whites for Same Crimes, WTKR (Feb. 21, 2022), https://www.wtkr.com/investigations/data-shows-black-men-receive-harsher-punishments-than-whites-for-same-crimes [https://perma.cc/KZ9Y-L97K]; VA. State Crime Comm’n, 2020 Annual Report: Mandatory Minimum Sentences 118–19 (2021), http://vscc.virginia.gov/2021/VSCC%202020%20Annual%20Report%20Mandatory%20Minimum%20Sentences.pdf [https://perma.cc/A5FT-GUAV]..

         [15].     The Sent’g Project, Incarcerated Women and Girls 2 (2023), https://www.sentencingproject.org/app/uploads/2022/11/Incarcerated-Women-and-Girls.pdf [https://perma.cc/25Q2-ZGMH].

         [16].     See McCleskey, 481 U.S. at 310 n.35, 312.

         [17].     Eli Hager, A Mass Incarceration Mystery, The Marshall Project (Dec. 15, 2017), https://www.themarshallproject.org/2017/12/15/a-mass-incarceration-mystery [https://perma.cc/58CU-5G8Q]. 

         [18].     This Article uses the term “caste” to refer to a rigid, socially constructed group that fits within a social and economic hierarchy. Cf. Isabel Wilkerson, Caste: The Origins of Our Discontents 17 (2020) (defining “caste” in a similar manner). A “racial caste system” describes a social ordering centered on racial identity.

         [19].     United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

         [20].     Id. (“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”).

         [21].     Id.

         [22].     See, e.g., Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 Calif. L. Rev. 297, 307 (1997); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 317 n.10 (1986)

         [23].     See, e.g., Gerald Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

         [24].     See, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206–07 (2023).

         [25].     See, e.g., Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 Const. Comment. 227, 229–32 (2006); Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 797 (2006).

         [26].     See Winkler, Fundamentally Wrong supra note 25.

         [27].     The Eighth Amendment consists of a prohibition against “excessive fines,” “excessive bail,” and “cruel and unusual punishments.” U.S. Const. amend. VIII. While an antisubordination interpretation is possible for each of these three clauses, this Article restricts its analysis to the punishment clause. It similarly exempts conditions of confinement, which involve different implementation rules. Each of these involve distinct analysis and are more suited to future projects.

         [28].     See Kathryn E. Miller, No Sense of Decency, 98 Wash. L. Rev. 115, 122–38 (2023) (discussing the origin and application of the evolving standards of decency test).

         [29].     Roper v. Simmons, 543 U.S. 551, 563 (2005).

         [30].     See id.

         [31].     Miller, supra note 28, at 157–77. In that piece, I formulated a new Eighth Amendment test for the punishment clause, grounded in the values of antisubordination and human dignity. Id. My proposed test required courts to apply strict scrutiny both to racially disparate sentences and to outlier sentences. Id. This Article expands the analysis of one half of that test. It explores the theory behind and potential impact of an Eighth Amendment test grounded solely in antisubordination.

         [32].     See William W. Berry III, Unusual State Capital Punishments, 72 Fla. L. Rev. 1, 8 (2020) (noting that a punishment does not “become[] unusual” until “a significant portion of society” has already abandoned it); Miller, supra note 28, at 127.

         [33].     Atkins v. Virginia, 536 U.S. 304, 321 (2002).

         [34].     Ford v. Wainwright, 477 U.S. 399, 401 (1986).

         [35].     Roper, 543 U.S. at 578.

         [36].     Miller v. Alabama, 567 U.S. 460, 465 (2012); Graham v. Florida, 560 U.S. 48, 82 (2010).

         [37].     Coker v. Georgia, 433 U.S. 584, 600 (1977).

         [38].     Kennedy v. Louisiana, 554 U.S. 407, 413 (2008).

         [39].     Enmund v. Florida, 458 U.S. 782, 797 (1982) (finding capital punishment cannot be imposed for the crime of felony murder unless the defendant (1) actually killed, (2) attempted to kill, or (3) intended for a killing to occur or for lethal force to be employed); Tison v. Arizona, 481 U.S. 137, 158 (1987) (finding capital punishment permissible where defendant was a major participant in the underlying felony and acted with reckless indifference to human life).

         [40].     Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 Mich. L. Rev. 1145, 1147–48 (2009) (comparing the number of capital sentences to noncapital ones and observing that the Court’s Eighth Amendment jurisprudence has impacted only a “tiny percent[age]” of criminal cases).

         [41].     Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring).

         [42].     Rummel v. Estelle, 445 U.S. 263, 274 (1980).

         [43].     McCleskey v. Kemp, 481 U.S. 279, 291–319 (1987).

         [44].     Id. at 315; id. at 339 (Brennan, J., dissenting).

         [45].     See, e.g., Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Affs. 107, 136 (1976); Derick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 162–77 (1987); Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Mia. L. Rev. 9, 10–11 (2003); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 344 (1987); Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388, 1419–21, 1424–29 (1988) (criticizing discriminatory-purpose doctrine and arguing that racial minorities have a right to be free of racially subordinating practices, even when harms are inflicted “without any intentional design whatsoever”).

         [46].     See, e.g., Fiss, supra note 45, at 150–51; Kenneth L. Karst, Belonging to America, 44–51 (1989); Cass R. Sunstein, The Anticaste Principle, 92 Mich. L. Rev. 2410, 2435 (1994).

         [47].     Fiss, supra note 45, at 136; Neil Gotanda, A Critique of “Our Constitution in Color-Blind”, 44 Stan. L. Rev. 1, 3, 66–68 (1991).

         [48].     Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. Rev. 1003, 1005 (1986); Fiss, supra note 45, at 127 (referring to anticlassification as “the antidiscrimination principle”).

         [49].     Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 709–711, 748 (2007) (finding that school administrators may not rely on mechanisms that take account of students’ race to achieve or protect integration in the school system).

         [50].     See, e.g., Ian F. Haney Lopez, “A Nation of Minorities”: Race, Ethnicity, and Reactionary Colorblindness, 59 STAN L. REV. 985, 1061 (2007). (“As it currently stands, constitutional race law is a disaster. It approaches the problem of race in our society exactly backwards, almost invariably striking down efforts to respond to racial hierarchy while insulating from more than cursory review state policies that disproportionately harm minorities.”).

         [51].     Schuette v. Coal. to Def. Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 337–38 (2014) (Sotomayor, J., dissenting).

         [52].     Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 318 (2023) (Sotomayor, J., dissenting).

         [53].     See id. at 319–25.

         [54].     Transcript of Oral Argument at 57–58, Merrill v. Milligan, 599 U.S. 1 (2023) (No. 21-1086). While Justice Jackson’s comments reveal a historical modality of interpretation that some members of the popular media dubbed “progressive originalism,” they are consistent with an antisubordination approach because they call for the remediation of a subordinated group—the freedmen—and not for universal equality. See. e.g., Evan Turiano, Justice Jackson Offered Democrats a Road Map for Securing Equal Rights, Wash. Post (Oct. 10, 2022) (referring to comments as progressive originalism), https://www.washingtonpost.com/made-by-history/2022/10/10/originalism-ketanji-brown-jackson-supreme-court/ [https://perma.cc/C4C4-MPNP]; Fiss, supra note 45, at 159–60 (arguing that Equal Protection Clause should be interpreted as “a prohibition of group, disadvantaging practices, not unfair treatment”).

         [55].     Students for Fair Admissions, 600 U.S. at 384 (Jackson, J., dissenting).

         [56].     Transcript of Oral Argument at 38–39, Students for Fair Admissions, Inc. v. Univ. of N.C., 600 U.S. 181 (2023) (No. 21-707).

         [57].     See U.S. Const. amends. VIII, XIV.

         [58].     This Article is aligned with traditional legal scholarship that considers social realities as a mechanism to understand constitutional guarantees. See J.M. Balkin, The Constitution of Status, 106 Yale L.J. 2313, 2315 n.2 (1997) (enumerating other scholars who have written in this tradition).

         [59].     In this Article, I have focused on the racially subordinating nature of the criminal punishment system because, in the United States, caste is coextensive with race. See Wilkerson, supra note 18, at 41–42. Black people are the paradigmatic subordinate group in the United States and have suffered the most harm from the mass punishment system. See infra Part I.A (discussing the racially subordinating nature of the criminal punishment system). My focus on the primacy of race in caste creation does not directly address intersectionality—the concept that people experience subordination differently based on their various identities. See generally Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 139–40 (1989) (introducing the concept of intersectionality). For example, Black women, such as K.H. in the example that opens this Article, experience the oppression of the criminal punishment system in a way that is distinct from both Black men and white women. See I. India Thusi, Harm, Sex, and Consequences, 2019 Utah L. Rev. 159, 183–84 (2019) (arguing that the criminal legal system structurally harms communities that experience intersectional forms of discrimination); Ifeoma Ajunwa, The Modern Day Scarlet Letter, 83 Fordham L. Rev. 2999, 3002 (2015) (identifying that “formerly incarcerated women are disproportionately impacted by the collateral legal consequences of criminal conviction because of their intersectional identities”). I leave to future work the question of what additional groups could and should qualify as historically subordinated under an Antisubordination Eighth Amendment and how intersectionality might be expressed in the doctrine. See infra Part IV.A.3 (discussing opportunities for the extension of an Antisubordination Eighth Amendment).

         [60].     While many legal scholars have a bias for the present, many constitutional scholars recognize that the composition of the Supreme Court will change over time and write at least implicitly, for future Courts. See, e.g., Kennedy, supra note 45, at 1424; Haney López, supra note 50, at 1061–63; Darren Lenard Hutchinson, Undignified: The Supreme Court, Racial Justice, and Dignity Claims, 69 Fla. L. Rev. 1, 8 (2017); Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 122 (2019); Erwin Chemerinsky, Worse than Nothing: The Dangerous Fallacy of Originalism  6–11, 212–13 (2022); Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 1–24 (Bennett Capers, Devon W. Carbado, R.A. Lenhardt, and Angela Onwuachi-Willig eds., 2022). I acknowledge that my normative vision for the Eighth Amendment is unlikely to resonate with the Court’s current conservative majority. See infra Part IV.B. Accordingly, this Article is future focused.

         [61].     Marta Nelson, Samuel Feineh & Maris Mapolski, Vera Inst. of Just., A New Paradigm for Sentencing in the United States 8 (2023), https://www.vera.org/downloads/publications/Vera-Sentencing-Report-2023.pdf [https://perma.cc/8Q8L-9YX2].

         [62].     Id. at 8–9.

         [63].     Ashley Nellis, The Sent’g Project, No End in Sight: America’s Enduring Reliance on Life Imprisonment 4 (2021), https://www.sentencingproject.org/app/uploads/2022/08/No-End-in-Sight-Americas-Enduring-Reliance-on-Life-Imprisonment.pdf [https://perma.cc/RL7T-VPE6].

         [64].     Id. at 4.

         [65].     See, e.g., Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419, 1434–36 (2016); Paul Butler, Chokehold: Policing Black Men xii, 5–7 (2017).

         [66].     See, e.g., Roberts, supra note 60, at 4; Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 25–73, 133–36 (10th anniversary ed. 2020) (2010).

         [67].     See, e.g., Dorothy E. Roberts, Crime, Race, and Reproduction, 67 Tul. L. Rev. 1945, 1946–60,  (1993) (discussing how race has been used to define both criminals and crime and connecting this history to the modern subordination of Black women through the criminalization of reproduction); Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899, 933 (2019) (“Today, the Punishment Clause permits slavery to persist in the United States and the racialization of this given the demographic patterns of mass incarceration cannot be overlooked.”); Alexander, supra note 66, at 14–16.

         [68].     Aya Gruber, Equal Protection Under the Carceral State, 112 Nw. U. L. Rev. 1337, 1364 (2018).

         [69].     Nazgol Ghandnoosh, The Sent’g Project, Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System 3 (2015), https://www.sentencingproject.org/app/uploads/2022/08/Black-Lives-Matter.pdf [https://perma.cc/2H9B-6FDQ]; Ashley Nellis, The Sent’g Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons 5 (2021), https://www.sentencingproject.org/app/uploads/2022/08/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf [https://perma.cc/HL24-WYDQ].

         [70].     Nellis, supra note 63, at 17–19.

         [71].     U.S. SENT’G COMM’N, supra note 12, at 2.

         [72].     Id. at 15.

         [73].     Roberts, supra note 67, at 1945.

         [74].     Id. at 1954–55, 1955 n.41.

         [75].     Id. at 1955 (citing A. Leon Higginbotham, Jr. & Anne F. Jacobs, The “Law Only As an Enemy”: The Legitimization of Racial Powerlessness Through the Colonial and Antebellum Criminal Laws of Virginia, 70 N.C. L. Rev. 969, 977 (1992)).

         [76].     Roberts, supra note 67, at 1955 (citing Higginbotham & Jacobs, supra note 75, at 977).

         [77].     Higginbotham & Jacobs, supra note 75, at 978.

         [78].     Id. at 979.

         [79].     Paul Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev. 671, 681–85 (2003).

         [80].     See id. at 683­­–85.

         [81].     Id. at 683–84.

         [82].     Roberts, supra note 67, at 1955–56; Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595, 1616 (2015).

         [83].     W.E.B. DuBois, Black Reconstruction in America: Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880 432 (Henry Louis Gatges, Jr. ed., Oxford Univ. Press 2007) (1935); Goodwin, supra note 67, at 941–45; see generally Douglas A. Blackmon, Slavery By Another Name: The Re-enslavement of Black Americans from the Civil War to World War II (2008) (documenting post-Civil War imprisonment of Black people as forced laborers in mining crews and chain gangs).

         [84].     Roberts, supra note 67, at 1956.

         [85].     Nelson et al., supra note 61, at 17.

         [86].     Id. (noting that Black people currently make up 13 percent of the national population and 33 percent of those imprisoned and finding that the statistic has been relatively stable in the decades between 1890 and 2010).

         [87].     Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America 4 (2011).

         [88].     Id. at 4, 11, 20.

         [89].     See id. at 7, 34.

         [90].     Id. at 230, 240, 243, 251, 255.

         [91].     Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1192 (2015).

         [92].     Khalil Gibran Muhammad, Where Did All the White Criminals Go?: Reconfiguring Race and Crime on the Road to Mass Incarceration, 13 Souls 72, 79–80 (2011).

         [93].     Id. at 79–80, 87–88.

         [94].     Muhammad, supra note 87, at 13.

         [95].     Nelson et al., supra note 61, at 18; Muhammad, supra note 92, at 85–87

         [96].     Muhammad, supra note 92, at 85.

         [97].     Id.. at 85.

         [98].     Muhammad, supra note 87, at 13.

         [99].     Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America 5–6 (2016) (noting that in reality “violent crime had in fact steadily declined after peaking in the interwar period” and overall “crime levels had remained relatively stable since the repeal of Prohibition”).

      [100].     See id. at 7–8, 12–13.

      [101].     Id. at 1, 13.

      [102].     Alexander, supra note 66, at 53.

      [103].     Nixon White House counsel John Erlichman has explained that the policies were intentionally but not explicitly racist: “‘Look, we understood we couldn’t make it illegal to be young or poor or [B]lack in the United States, but we could criminalize their common pleasure.’ . . . ‘We understood that drugs were not the health problem we were making them out to be, but it was such a perfect issue for the Nixon White House that we couldn’t resist it.’” Larry Gabriel, Joining the Fight, Det. Metro Times (Aug. 10, 2011), https://www.metrotimes.com/weed/joining-the-fight-2148184 [https://perma.cc/LH6A-2WMY]. Nixon White House Chief of Staff H.R. Haldeman confirmed that this was Nixon’s strategy: “‘[President Nixon] emphasized that you have to face the fact that the whole problem is really the [B]lacks.’ . . . ‘The key is to devise a system that recognizes this while not appearing to.’” Id.; see also Alexander, supra note 66, at 56 (discussing statements by these men that President Nixon intentionally courted the “anti-[B]lack” vote).

      [104].     James Cullen, The History of Mass Incarceration, Brennan Cntr. for Just. (July 20, 2018), https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration?utm_medium=PANTHEON_STRIPPED&utm_source=PANTHEON_STRIPPED#:~:text=When%20Reagan%20took%20office%20in,then%20and%20remain%20so%20today [https://perma.cc/TJN8-JL9B]; Paul Guerino, Paige M. Harrison, and William J. Sabol, Prisoners in 2010, Bureau of Just. Stat. 1 (Dec. 2011), https://bjs.ojp.gov/content/pub/pdf/p10.pdf [https://perma.cc/RSA8-WCYX].

      [105].     Hinton, supra note 99, at 10.

      [106].     Roberts, supra note 67, at 1956.

      [107].     Id. at 1958–59; Alexander, supra note 66, at 67; see 21 U.S.C. § 841(b) (amended 2010) (originally creating a mandatory minimum of five years of imprisonment for possession of five grams of crack or 500 grams of cocaine; in 2010, the threshold for crack was increased to twenty-eight grams).

      [108].     Roberts, supra note 67, at 1957–58.

      [109].     See Alexander, supra note 66, at xv; see also John R. Mills, Anna M. Dorn & Amelia Courtney Hritz, Juvenile Life Without Parole in Law and Practice: Chronicling the Rapid Change Underway, 65 Am. U. L. Rev. 535, 583 (2016) (discussing the racialized myth of the “superpredator”).

      [110].     Alexander, supra note 66, at 71–73.

      [111].     See Hinton, supra note 91, at 271–72.

      [112].     Nelson et al., supra note 61, at 19–20.

      [113].     See id. at 20.

      [114].     Id.

      [115].     Id.

      [116].     Alexander, supra note 66, at 8.

      [117].     See Kathryn E. Miller, The Eighth Amendment Power to Discriminate, 95 Wash. L. Rev. 809, 840–48 (2020) [hereinafter Miller, Eighth Amendment Power] (discussing racial bias in sentencing juries in capital cases as a result of jury composition and discretion); Kathryn E. Miller, Resurrecting Arbitrariness, 107 Cornell L. Rev. 1319, 1347 (2022) [hereinafter Miller, Resurrecting] (arguing that unfettered discretion in sentencing results in arbitrary and racially discriminatory results in part because white people are overrepresented on juries and in the judiciary).

      [118].     Miller, Resurrecting, supra note 117, at 1349.

      [119].     Phillip Atiba Goff, Matthew Christian Jackson, Brooke Allison Lewis Di Leone, Carmen Marie Culotta & Natalie Ann DiTomasso, The Essence of Innocence: Consequences of Dehumanizing Black Children, 106 J. Personality & Soc. Psych. 526, 539–40 (2014).

      [120].     William T. Pizzi, Irene V. Blair & Charles M. Judd, Discrimination in Sentencing on the Basis of Afrocentric Features, 10 Mich. J. Race & L. 327, 345–52 (2005).

      [121].     William J. Bowers, Benjamin D. Steiner & Marla Sandys, Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition, 3 U. Pa. J. Const. L. 171, 215–16 (2001).

      [122].     Miller, Resurrecting, supra note 117, at 1350–52. There are several reasons for this. Jury pools disproportionately exclude Black and Brown potential jurors when they are based on voter registration logs or when they are constrained by laws that temporarily or permanently disqualify individuals with felony convictions from jury service. Id. at 1371. Despite Batson v. Kentucky, prosecutors continue to use peremptory strikes to remove Black and Brown potential jurors without detection. Id.

      [123].     Todd R. Clear, The Effects of High Imprisonment Rates on Communities, 37 Crime & Just. 97, 114–16 (2008).

      [124].     Nelson et al., supra note 61, at 28.

      [125].     Id.

      [126].     Alexander, supra note 66, at 2; Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1799–1800 (2012).

      [127].     Chin, supra note 126, at 1800; Sex Offender Registry Requirements Across the United States, Prob. Notification Info. Network, https://www.probationinfo.org/sor/notification/#:~:text=Information%20regarding%20tier%201%20sex,offenders%2C%20immediate%20neighbors%20are%20notified [https://perma.cc/Y3D6-52HF].

      [128].     Id. at 1791, 1799–1800.

      [129].     This is typically the case for those convicted of certain crimes related to sexual assault. Id. at 1801.

      [130].     I use “caste” to mean a rigid, socially constructed group that fits within a social and economic hierarchy. See Wilkerson, supra note 18, at 17. Membership in a caste is typically determined by possession of traits that are “neutral in the abstract” but that have been given negative or positive meaning historically by members of the dominant caste. Id.

      [131].     In this Section, I focus on aspects of the Court’s punishment jurisprudence that have had this effect, leaving for another day the Court’s jurisprudence on conditions of confinement and excessive fines.

      [132].     See Gotanda, supra note 47, at, 3 (arguing that the Court’s jurisprudence on race has had these effects).

      [133].     Powell v. Alabama 287 U.S. 45, 50 (1932) (“The only one of the assignments which we shall consider is the second, in respect of the denial of counsel; and it becomes unnecessary to discuss the facts of the case or the circumstances surrounding the prosecution except in so far as they reflect light upon that question.”); see Brief for Petitioners at 36–47, 60–62, Powell, 287 U.S. 45 (Nos. 98-100) (detailing the race-dependent nature of the remaining two claims).

      [134].     Shepherd v. Florida, 341 U.S. 50, 50 (1951). Justice Jackson wrote a concurring opinion, in which Justice Frankfurter joined, that focused on racial exclusion in jury selection. Id. at 50–55 (Jackson, J., concurring). For the story of the Groveland Four, see Gilbert King, Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America (2012).

      [135].     Evan J. Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America, 1, 19–22 (2013).

      [136].     See id. at 26, 28.

      [137].     Id. at 22. Goldberg believed that “[s]ome Justices might be comfortable striking down an excessive punishment on ethical grounds but reluctant to critique the American criminal justice system as racist.” Id.

      [138].     Id. at 27–28. Warren’s request to omit race was grounded in a belief that the opinion would invite public scrutiny on the Court because white people had a deep-seated fear of sexual violence at the hands of Black people. Id. at 28.

      [139].     Id. at 37, 68; Brief for Petitioner at 51–53, Aikens v. California, 406 U.S. 813 (1972) (No. 68-5027); see also Maxwell v. Bishop, 398 F.2d 138, 139, 147 (8th Cir. 1968), vacated, 398 U.S. 262 (1970) (concluding, in a majority opinion written by later-Justice Blackmun, “[w]e are not yet ready to condemn and upset the result reached in every case of a negro rape defendant in the State of Arkansas on the basis of broad theories of social and statistical injustice” supplied by LDF). LDF later challenged Maxwell on racial discriminatory grounds, but the Court certified other legal issues. Mandery, supra note 135, at 38, 44–45, 70.

      [140].     Mandery, supra note 135, at 70. Compare Brief for Petitioner at 15, Boykin v. Alabama, 395 U.S. 238 (1968) (No. 642) (arguing that “[t]he [d]eath [p]enalty for [p]roperty crimes [was] [r]eserved [e]xclusively for [Black people]”) with Boykin, 395 U.S. at 242–44 (reversing based on trial court’s failure to assess voluntariness of defendant’s guilty plea).

      [141].     408 U.S. 238, 239–40 (1972) (per curiam).

      [142].     See Gregg v. Georgia, 428 U.S. 153, 206 (1976) (“The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily.”).

      [143].     Furman, 408 U.S. at 240–57 (Douglas, J., concurring); id. at 257–306 (Brennan, J., concurring); id. at 306–10 (Stewart, J., concurring); id. at 310–14 (White, J., concurring); id. at 314–71 (Marshall, J., concurring).

      [144].     Id. at 242 (Douglas, J., concurring).

      [145].     Id. at 364 (Marshall, J., concurring).

      [146].     Id. at 305 (Brennan, J., concurring).

      [147].     Id. at 274 (Brennan, J., concurring).

      [148].     Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (“Since five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds—Mr. Justice Stewart and Mr. Justice White.”).

      [149].     Furman, 408 U.S. at 313 (White, J., concurring).

      [150].     Id. at 309 (Stewart, J., concurring).

      [151].     Id. at 310.

      [152].     In its focus on individual harm, this move paralleled the Court’s later preference for an anticlassification interpretation of the Equal Protection Clause.

      [153].     See Gregg, 428 U.S. at 179–80; Miller, Eighth Amendment Power, supra note 117, at 819.

      [154].     See Gregg, 428 U.S. at 153–54, 206–07; Proffitt v. Florida, 428 U.S. 242, 247–54, 259–60 (1976).

      [155].     See Gregg, 428 U.S. at 153–54, 206–07; Proffitt, 428 U.S. at 247–54, 259–60.

      [156].     481 U.S. 279 (1987).

      [157].     Id. at 282–83, 287, 290–91. Professors David C. Baldus, Charles Pulaski, and George Woodworth put forth two studies as evidence of racial disparities. Id. at 286. These studies, which were dubbed the “Baldus study,” examined data in over 2,000 Georgia murder cases, accounting for 230 variables that could have indicated nonracial explanations for the sentencing discrepancies. Id. at 286-87. The Baldus study revealed that Black defendants convicted of killing white victims had the greatest chance of receiving a death sentence. Id. Specifically, the evidence showed both a race of defendant effect and a race of the victim effect. Id. It concluded that Black defendants “were 1.1 times as likely to receive a death sentence as [non-Black] defendants” and that people convicted of killing white victims were “4.3 times as likely to receive a death sentence” as those convicted of killing Black victims. Id.

      [158].     Id. at 291, 299–300.

      [159].     Id. at 292–93, 297–98.

      [160].     See id. at 302–03.

      [161].     Id. at 302–05, 308–13 (accepting as constitutional the risk that Georgia death sentences were imposed in a racially discriminatory way given the fact that the Georgia capital sentencing scheme included procedural protections for defendants). See Furman, 408 U.S. at 239–40, 309–10 (finding death sentences unconstitutional where imposed “wantonly and freakishly” on a “random handful” of individuals); Greg, 428 U.S. at 189,196–98, 206–07 (finding that a death sentence imposed under the Georgia capital sentencing scheme constitutional was due to state’s new procedural protections that, among other things, mandated comparison of sentencing outcomes minimized risk of arbitrary sentencing outcomes).

      [162].     Id. at 313.

      [163].     See generally William J. Bowers, The Pervasiveness of Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 74 J. Crim. L. & Criminology 1067 (1984) (explaining that the procedural reform that states undertook to address arbitrariness in death sentencing after Furman v. Georgia did not impact racial discrimination).

      [164].     Miller, Eighth Amendment Power, supra note 117, at 828.

      [165].     See Woodson v. North Carolina, 428 U.S. 280, 295, 301, 304 (1976); Jurek v. Texas, 428 U.S. 262, 271 (1976); Lockett v. Ohio, 438 U.S. 586, 586 (1978); Eddings v. Oklahoma, 455 U.S. 104, 104 (1982).

      [166].     McCleskey, 481 U.S. at 310 (quoting Strauder v. West Virginia, 100 U.S. 303 (1880)).

      [167].     Id. at 311.

      [168].     Miller, Eighth Amendment Power, supra note 117, at 828.

      [169].     See McCleskey, 481 U.S. at 311–12.

      [170].     See id. at 314–19.

      [171].     Id. at 315–18.

      [172].     See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 26–28 (1973) (discussing traditional characteristics of suspect classes accorded special constitutional protection).

      [173].     See supra note 10 and accompanying text.

      [174].     See Roper v. Simmons, 543 U.S. 551, 563 (2005) (discussing application of the evolving standards of decency test). For a deep dive into the flaws of the test, see Miller, supra note 28.

      [175].     Miller, supra note 28.

      [176].     Roper, 543 U.S. at 563; see also Graham, 560 U.S. at 101 (dissenting, Thomas, J.) (listing “jury behavior” as an indicator of national consensus under the evolving standards of decency test).

      [177].     See Roper, 543 U.S. at 563–64; John F. Stinneford, The Illusory Eighth Amendment, 63 Am. U. L. Rev. 437, 476 (2013).

      [178].     Miller, supra note 28 at 148–49.

      [179].     To date the test has invalidated the death penalty for individuals with intellectual disability, Atkins v. Virginia, 536 U.S. 304, 321 (2002); those suffering from insanity at the time of their execution, Ford v. Wainwright, 477 U.S. 399, 401 (1986); and those under 18 at the time of their crime, Roper, 543 U.S. at  563; and has constrained the imposition of life without parole on juveniles, Miller v. Alabama, 567 U.S. 460, 465 (2012); Graham v. Florida, 560 U.S. 48, 82 (2010). The test has also supported the Court’s decisions that the death penalty is unconstitutional for several nonhomicide crimes, including rape of adults, Coker v. Georgia, 433 U.S. 584, 600 (1977), and children, Kennedy v. Louisiana, 554 U.S. 407, 413 (2008), as well as some types of felony murder, compare Enmund v. Florida, 458 U.S. 782, 797 (1982) (finding capital punishment unconstitutional for the crime of felony murder unless the defendant (1) actually killed, (2) attempted to kill, or (3) intended for a killing to occur) with Tison v. Arizona, 481 U.S. 137, 158 (1987) (finding capital punishment constitutional where an individual both was a “major participa[nt]” in the underlying felony and acted with “reckless indifference to human life”).

   [180].     Tonja Jacobi, The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus, 84 N.C. L. Rev. 1089, 1113 (2006); see also Aliza Cover, Cruel and Invisible Punishment: Redeeming the Counter-Majoritarian Eighth Amendment, 79 Brook. L. Rev. 1141, 1175 (2014) (“Understood thus as a majoritarian standard, the constitutional protections for individuals under the Eighth Amendment are, perversely, most robust when society is predisposed against a particular punishment.”).

      [181].     See Gregg v. Georgia, 428 U.S. 153, 188 (1976).

      [182].     See Miller, 567 U.S. at 480.

      [183].     See Barkow, supra note 40, at 1145 (“The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent.”). The test has also taken a back seat in cases involving conditions of confinement and methods of execution. While the Court claims to be guided by the evolving standards of decency in assessing conditions of confinement, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), it requires litigants to meet a different test. They must establish both that they have suffered a “sufficiently serious” “deprivation” and that state actors possess “a sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298–301 (1991). In methods of execution cases, the Court has recently eschewed the evolving standards of decency test all together. In Bucklew v. Precythe, the Court held that methods of execution only violate the Constitution if they superadd pain despite “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” 587 U.S. 119, 134 (2019).

      [184].     See Weems v. United States, 217 U.S. 349, 380–82 (1910).

      [185].     See Trop v. Dulles, 356 U.S. 86, 101 (1958).

      [186].     Rummel v. Estelle, 445 U.S. 263, 274 (1980).

      [187].     Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring) (quoting Solem v. Helm, 463 U.S. 277, 288, 303 (1983)). Only if this high threshold is met would the Court then theoretically engage in comparative analysis. Id. at 1005. In his opinion in Harmelin, Justice Scalia went a step further. He cast aside the evolving standards of decency test and settled on a narrow historical reading of the Eighth Amendment that he contended lacked any requirement of proportionality. Id. at 965. A majority of the Court did not sign on to this approach and a plurality later adopted the grossly proportionate test from Justice Kennedy’s concurrence. See Ewing v. California, 538 U.S. 11, 22–24, 28–31 (2003) (plurality opinion) (applying Justice Kennedy’s gross proportionality test to find that a life sentence was not a grossly disproportionate punishment for stealing a golf club as a third strike); Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 Va. L. Rev. 677, 693 (2005) (referring to Justice Kennedy’s concurring opinion as the opinion “that eventually came to assume the status of law”).

      [188].     Ewing, 538 U.S. at 28 (quoting Solem, 463 U.S. at 297 n.22).

      [189].     Lockyer v. Andrade, 538 U.S. 63, 66–68, 77 (2003) (finding on habeas review punishment imposed under California’s Three Strikes sentencing law constitutional where previous crimes were a petty misdemeanor and another theft of videotapes).

      [190].     Ewing, 538 U.S. at 29–30 (finding California’s Three Strikes sentencing law constitutional).

      [191].     Rummel, 445 U.S. at 265–66 (finding life sentence constitutional where previous two crimes were fraudulent credit card use and passing a forged check in amounts below $100).

      [192].     Hutto v. Davis, 454 U.S. 370, 370–75 (1982). While the Court also did not explicitly find that the petitioner’s sentence was grossly disproportionate, it remanded his habeas petition to the district court for dismissal. Id. at 305. The Court emphasized that “Rummel stands for the proposition that federal courts should be ‘reluctan[t] to review legislatively mandated terms of imprisonment,’ and that ‘successful challenges to the proportionality of particular sentences' should be ‘exceedingly rare.’” Id. at 374 (citing Rummel, 445 U.S. at 272).

      [193].     Harmelin, 501 U.S. at 961, 996–97. The lone noncapital punishment found unconstitutionally disproportionate in the modern era was a mandatory sentence of life without parole imposed after a defendant’s seventh nonviolent conviction, this time for writing a bad check for $100. Solem v. Helm, 463 U.S. 277 (1983). Solem was decided before the Justices coalesced around the gross proportionality test in Harmelin and is now considered “an outlier.” Barkow, supra note 40, at 1160.

      [194].     See Barkow, supra note 40, at 1160–61; Lee, supra note 187, at 695.

      [195].     Hawker v. New York, 170 U.S. 189, 197 (1898).

      [196].     Smith v. Doe, 538 U.S. 84, 89–91, 105–06 (2003).

      [197].     Kansas v. Hendricks, 521 U.S. 346, 350, 368–69 (1997).

      [198].     See Galvan v. Press, 347 U.S. 522, 530–31 (1954); see also I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) (“The purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws.”).

      [199].     See Smith, 538 U.S. at 97 (noting that the factors to determine punishment under the ex post facto clause “have their earlier origins under the Sixth and Eighth Amendments”); Margaret Colgate Love, Jenny Roberts & Wayne A. Logan, Collateral Consequences of Criminal Conviction: Law, Policy, and Practice § 3:14 n.4 (2021) (noting that what constitutes punishment is the same inquiry under the Eighth Amendment and the ex post facto clause).

      [200].     See Smith, 538 U.S. at 97.

      [201].     356 U.S. 86, 97 (1958); see also Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (finding that California’s felon disenfranchisement statute did not violate the Equal Protection Clause). A panel of the Fifth Circuit recently found that the Mississippi Constitution’s permanent felon disenfranchisement provision constituted punishment under the Eighth Amendment because it was enacted following federal legislation that explicitly forbade disenfranchisement “except as [] punishment.” Hopkins v. Sec’y of State Delbert Hosemann, 76 F.4th 378, 401–04 (5th Cir. 2023). However, as of this writing, the decision has been vacated for en banc review. Hopkins v. Hosemann, 83 F.4th 312 (5th Cir. 2023).

      [202].     See, e.g., Eid v. Thompson, 740 F.3d 118, 125–26 (3d Cir. 2014) (finding that deportation as a result of criminal conviction does not fall under the Eighth Amendment because it does not constitute punishment and is considered “a civil rather than a criminal procedure”);; Green v. Bd. of Elections of City of New York, 380 F.2d 445, 450 (2d Cir. 1967) (finding that felon disenfranchisement is not subject to Eighth Amendment review because it is a “‘nonpenal exercise of the power to regulate the franchise’”) (quoting Trop, 356 U.S. at 97); Booker v. City of New York, No. 14-CV-09801, 2017 WL 151625, at *7 (S.D.N.Y. Jan. 13, 2017), report and recommendation adopted, No. 14-CV-09801, 2017 WL 1102673 (S.D.N.Y. Mar. 24, 2017) (finding that disqualification for employment with the Parks Department as a result of a criminal conviction did not qualify as punishment for Eighth Amendment purposes); Harden v. Mo. Bd. of Prob. & Parole, No. 20-CV-00771, 2020 WL 6158157, at *7 (E.D. Mo. Oct. 21, 2020) (finding that fees associated with parole are “civil in nature” and thus not entitled to Eighth Amendment review); People v. Rizzo, 61 N.E.3d 92, 104 (Ill. 2016) (finding that an Eighth Amendment proportionality analysis “appl[ies] only to the criminal process involving a direct action by the government to inflict punishment” and thus may not take into account the collateral consequences of a conviction) (quoting People v. Boeckmann, 932 N.E.2d 998, 1007 (Ill. 2010)); State v. Meadows, No. A13-1023, 2014 WL 3396238, at *4–5 (Minn. Ct. App. July 14, 2014) (finding that ineligibility to possess a firearm as a result of a felony conviction did not constitute punishment under the Eighth Amendment). But see Hopkins, 76 F.4th at 401–04 (finding the Mississippi Constitution’s permanent felony disenfranchisement to be cruel and unusual punishment), reh’g en banc granted, opinion vacated, 83 F.4th 312; cf. In re C.P., 967 N.E.2d 729, 744–46 (Ohio 2012) (finding that mandatory lifetime sex offender registration requirements violated the state’s Eighth Amendment analogue when imposed on children); Bradshaw v. State, 671 S.E.2d 485, 487, 492 (Ga. 2008) (holding that lifetime incarceration violated the Eighth Amendment when imposed for twice failing to update a change of address within seventy-two hours as per state sex offender registration requirements).

      [203].     See Chin, supra note 126, at 1808–09 (“One must, therefore, question the wisdom of a rule relying so much on a distinction between regulation and punishment, when the two are often not different in principle.”).

      [204].     See id. at 1799 (referring to collateral consequences as a new civil death that “gives rise to a legal status making convicted persons subject to restrictions on freedom, benefits, and rights”).

      [205].     See infra Part I; Chin, supra note 126, at 1790–92; Alexander, supra note 66, at 1–2, 174–220 (arguing that collateral consequences flow from segregation laws and disproportionately impact Black people); see also Jenny E. Carroll, The Civic Death of Participatory Democracy 12–13 (May 8, 2024) (work-in-progress unpublished manuscript) (on file with author) (discussing the connection between the Black Codes and modern felon disenfranchisement and exclusion from jury service).

      [206].     See Gabriel J. Chin, Collateral Consequences of Criminal Conviction, 18 Criminology, Crim. Just., L. & Soc’y 1, 3–4 (2017); Gabriel J. Chin, Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions, 102 Marq. L. Rev. 233, 243 (2018).

      [207].     See Christopher J. Tyson, From Ferguson to Flint: In Search of an Antisubordination Principle for Local Government Law, 34 Harv. J. on Racial & Ethnic Just. 1, 25, 27 (2018); Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L.J. 778, 838 (2021).

      [208].     Tyson, supra note 207, at 26.

      [209].     Id.

      [210].     See Simonson, supra note 207, at 838; Fiss, supra note 45, at 160.

      [211].     See Balkin & Siegel, supra note 45, at 14; Haney López, supra note 50, at 989–91; Owen Fiss, Another Equality, 2 Issues in Legal Scholarship: Origins & Fate Antisubordination Theory 5 (2004).

      [212].     426 U.S. 229, 242 (1976).

      [213].     See, e.g., Fiss, supra note 45, at 129–36; Karst, supra note 46, at 158–67; Haney López, supra note 50, at 987.

      [214].     Fiss, supra note 45, at 157; Fiss, Another Equality, supra note 211, at 5

      [215].     See id. at 147, 151–52; Balkin & Siegel, supra note 45, at 14.

      [216].     Id. at 151–52, 155.

      [217].     Id. at 154–55.

      [218].     Id. 157.

      [219].     See id.

      [220].     Id. at 153, 167. Any “harm to a specially disadvantaged group” triggers strict scrutiny under Fiss’ group-disadvantaging principle. Id. at 167. Fiss’s strict scrutiny considers available alternatives based on “status harm to the disadvantaged group” and allows for a second inquiry if no better alternative exists. Id. at 167. The court must then weigh whether the benefit to society outweighs the harm to the group. Id. at 167–68.

      [221].     Id. at 160–61.

      [222].     See Balkin & Siegel, supra note 45, at 9, 15; Kennedy, supra note 45, at 1424.

      [223].     Kennedy, supra note 45, at 1424.

      [224].     Balkin & Siegel, supra note 45, at 15.

      [225].     See, e.g., Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1335–36 (1988) (arguing that critical legal studies scholarship “overlooks the relationship of racism to hegemony” and that “racism is a central ideological underpinning of American society”); id. at 1356 (“While Critical scholars claim that their project is concerned with domination, few have made more than a token effort to address racial domination specifically, and their work does not seem grounded in the reality of the racially oppressed.”); id. at 1371 (“[Racial] stereotypes serve a hegemonic function by perpetuating a mythology about both Blacks and whites even today, reinforcing an illusion of a white community that cuts across ethnic, gender, and class lines.”); Gotanda, supra note 47, at 3 (writing from the perspective that America is a society grounded in racial subordination); Haney López, supra note 50, at 990 (“[A] general dynamic of systemic group subordination lies at the core of race in the United States.”).

      [226].     Crenshaw, supra note 225, at 1356.

      [227].     Id. at 1336 n.20.

      [228].     Id. at 1370–74, 1379.

      [229].     Id. at 1371–72.

      [230].     Id. at 1372.

      [231].     Id. at 1379.

      [232].     “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.  XIV, § 1.

      [233].     U.S. Const. art. II, § 1, cl. 5 (“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”).

      [234].     See, e.g., Fiss, supra note 45, at 108.

      [235].     Id. at 107–08.

      [236].     Id. at 108, 118.

      [237].     Id. at 108.

      [238].     Antisubordination scholars are not originalists; rather, they belong to the school of interpretation that believes that the Framers’ intent and historical public meaning are two of many sources that courts should consider when engaging in constitutional interpretation. See Chemerinsky, supra note 60, at 9 (discussing how non-originalists rely on a combination of factors to interpret the Constitution, including the text, the Framers’ intent, the structure of the Constitution, tradition, precedent, and modern social needs); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1194–1209 (1987) (identifying five arguments of constitutional interpretation involving text, intent, theory related to the structure of the Constitution, precedent, and values).

      [239].     William M. Carter, Jr., The Second Founding and the First Amendment, 99 Tex. L. Rev. 1065, 1065, 1067–72 (2021); see generally Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019).

      [240].     Fiss, supra note 45, at 147.

      [241].     Id. at 150, 154–55.

      [242].     See, e.g., Balkin, supra note 58, at 2348.

      [243].     Balkin & Seigel, supra note 45, at 10 n.5 (citing Cong. Globe, 39th Cong., 1st Sess. 674 (1866) (remarks of Sen. Sumner) and Cong. Globe, 39th Cong., 1st Sess. 2766 (1866) (remarks of Sen. Howard)).

      [244].     See Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev. 753, 754, 784–88 (1985).

      [245].     Balkin, supra note 58, at 2346-47.

      [246].     See Carter, supra note 239, at 1082.

      [247].     Balkin, supra note 58, at 2353–54; Haney López, supra note 50, at 994 (“Harlan’s central objection to Louisiana’s use of race in Plessy turned on relations of group domination and subordination, on state-sanctioned superior classes and legally degraded castes.”).

      [248].     163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Interestingly, advocates championing the anticlassification approach also claim Justice Harlan, pointing to the same dissent, where he wrote, “[o]ur constitution is colorblind, and neither knows nor tolerates classes among citizens.” Id. at 559.

      [249].     Fiss, supra note 45, at 152; see also Haney López, supra note 50, at 1062 (“Equal Protection unavoidably depends on a conception of group relations, and more particularly on hostility toward group subordination. This is, of course, the core insight of footnote four analysis . . . .”); Balkin, supra note 58, at 2367 (“I would like to suggest now that footnote four is also concerned with the problem of unjust status hierarchies in a democracy.”).

      [250].     See United States v. Carolene Prods. Co., 304 U.S. 144, 152–53,152 n.4 (1938).

      [251].     See Balkin & Seigel, supra note 45, at 11; Haney López, supra note 50, at 1001–04.

      [252].     See 347 U.S. 483, 493 (1954).

      [253].     See 388 U.S. 1, 7, 11 (1967) (describing Virginia’s ban on interracial marriage as “obviously an endorsement of the doctrine of White Supremacy”).

      [254].     See generally Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470 (2004).

      [255].     Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968).

      [256].     See id. at 437–38, 441–42.

      [257].     402 U.S. 1 (1971).

      [258].     Id. at 19.

      [259].     N.C. State Bd. of Educ. v. Swann, 402 U.S. 43 (1971).

      [260].     Id. at 46.

      [261].     McDaniel v. Barresi, 402 U.S. 39, 41–42 (1971) (quoting Barresi v. Browne, 175 S.E.2d 649, 652 (Ga. 1970)).

      [262].     See Balkin & Seigel, supra note 45, at 28–29. For an explanation contextualizing this jurisprudential shift in contemporary events, conservative legal scholarship, and reactionary social mores, see Haney López, supra note 50, at 1006–1021.

      [263].     426 U.S. 229, 239, 247–48 (1976).

      [264].     Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289–90 (1978).

      [265].     Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007); see also Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (quoting Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J., dissenting)) (“[R]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.”).

      [266].     Haney López, supra note 50, at 1061; see, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 192–97, 230–31 (2023) (invalidating race-based affirmative action in higher education).

      [267].     See, e.g., Balkin & Seigel, supra note 45, at 27–28.

      [268].     Bakke, 438 U.S. at 407 (Blackmun, J., concurring in part and dissenting in part); see also Bakke, 438 U.S. at 387–96 (Marshal, J., concurring in part and dissenting in part) (detailing the historical and contemporary subordination of Black people).

      [269].     539 U.S. 306 (2003).

      [270].     Id. at 327, 343.

      [271].     See id. at 332.

      [272].     Justice Thomas has recently expressed disapproval of antisubordination theory: “Despite the extensive evidence favoring the colorblind view, as detailed above, it appears increasingly in vogue to embrace an ‘antisubordination’ view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks. Such a theory lacks any basis in the original meaning of the Fourteenth Amendment.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 246–47 (2023) (Thomas, J., concurring). However, as Justice Sotomayor pointed out in dissent, while Justice Thomas’s “historical analysis leads to the inevitable conclusion that the Constitution is not, in fact, colorblind,” Justice Thomas ultimately “agrees that race can be used to remedy past discrimination and ‘to equalize treatment against a concrete baseline of government-imposed inequality.’” Id. at 356 (Sotomayor, J., dissenting) (quoting id. at 251 (Thomas, J., concurring)).

      [273].     Schuette v. Coal. to Def. Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 337–38 (2014) (Sotomayor, J., dissenting); Students for Fair Admissions, 600 U.S. at 318–42 (Sotomayor, J., dissenting).

      [274].     See Transcript of Oral Argument, supra note 54, at 57–58. While Justice Jackson’s comments reveal a historical modality of interpretation that some members of the popular media dubbed “progressive originalism,” they are consistent with an antisubordination approach because they call for the remediation of a subordinated group—the freedmen—and not for universal equality. See. e.g., Evan Turiano, Justice Jackson Offered Democrats a Road Map for Securing Equal Rights, Wash. Post (Oct. 10, 2022), https://www.washingtonpost.com/made-by-history/2022/10/10/originalism-ketanji-brown-jackson-supreme-court/ [https://perma.cc/C4C4-MPNP] (referring to comments as progressive originalism);  Fiss, supra note 45, at 159–60 (arguing that Equal Protection Clause should be interpreted  as “a prohibition of group, disadvantaging practices, not unfair treatment”); Students for Fair Admissions, 600 U.S. at 384–98 (Jackson J., dissenting).

      [275].     See Transcript of Oral Argument, supra note 56, at 38; Grutter, 539 U.S. at 308.

      [276].     Balkin, supra note 58, at 2359 (finding antisubordination themes “in the Reconstruction Amendments, the Titles of Nobility Clauses, the Bill of Attainder Clauses, the Establishment Clause, and the Republican Government Clause”).

      [277].     See, e.g., Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118–21 (2018); see also Carter, supra note 239, at 1114 (calling for First Amendment doctrine to take account of the remedial measures of the Second Founding and the historical punishment of “Black and antiracist speech”).

      [278].     See Christopher J. Tyson, supra note 207, at 5.

      [279].     See Sergio J. Campos, Subordination and the Fortuity of Our Circumstances, 41 U. Mich. J.L. Reform 585, 614–15 (2008).

      [280].     See Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 391 (1982) (“The[re] are simply different Constitutions. There are as many plausible readings of the United States Constitution as there are versions of Hamlet.”).

      [281].     Punishment need not constitute physical violence. For example, fines are often imposed as punishment. Not only is there evidence to suggest fines are disproportionately imposed on Black and Brown defendants, but their imposition can further entrench economic subordination. See Lindsay Bing, Becky Pettit & Ilya Slavinski, Incomparable Punishments: How Economic Inequality Contributes to the Disparate Impact of Legal Fines and Fees, 8 Russell Sage Found. J. Soc. Scis. 118, 120, 126–28 (2022); U.S. Commission on Civil Rights, Targeted Fines and Fees against Communities of Color 2–3, 72 (Sept. 2017), https://www.usccr.gov/files/pubs/2017/Statutory_Enforcement_Report2017.pdf [https://perma.cc/7RQU-LHE5].

      [282].     402 U.S. 183, 185, 196 (1971), reh’g denied, 406 U.S. 978 (1972), and reh’g granted, judgment vacated sub nom. Crampton v. Ohio, 408 U.S. 941 (1972).

      [283].     See id. at 204, 207–08.

      [284].     Id. at 221.

      [285].     Furman v. Georgia, 408 U.S. 238, 239–40 (1972); id. at 310 (Stewart, J., concurring).

      [286].     Gregg v. Georgia, 428 U.S. 153, 195 n.47 (1976).

      [287].     See Gregg, 428 U.S. at 162–63, 195, 196–207 (finding the Georgia capital sentencing scheme constitutional because it mandated bifurcated capital trials, required weighing of aggravating and mitigating sentencing factors, and provided for mandatory appellate review); Proffitt v. Florida, 428 U.S. 242 (1976) (finding constitutional the Florida capital sentencing scheme that directed sentencers to consider a balancing of statutory mitigating and aggravating factors to determine if death should be imposed); Jurek v. Texas, 428 U.S. 262 (1976) (finding the Texas capital sentencing scheme constitutional because it permitted a sentencer to impose a death sentence only after answering three statutorily mandated questions); Lockett v. Ohio, 438 U.S. 586, 597–609 (1978) (plurality decision) (mandating that states permit sentencers to consider any aspect of the defendant’s character or circumstance of the offense as potentially mitigating); Eddings v. Oklahoma, 455 U.S. 104 (1982) (confirming Lockett in a majority decision that sentencers must consider mitigating circumstances in imposing capital sentences).

      [288].     428 U.S. at 189.

      [289].     Tuilaepa v. California, 512 U.S. 967, 980 (1994) (Scalia, J., concurring) (referring to “the distinctive procedural requirements of the Eighth Amendment”).

      [290].     Ford v. Wainwright, 477 U.S. 399, 405 (1986).

      [291].     Margaret Jane Radin, Cruel Punishment and Respect for Persons: Super Due Process for Death, 53 S. Cal. L. Rev. 1143, 1148 (1980) (describing Furman as importing a “due process strain” into the Eighth Amendment); Eric Berger, Lethal Injection Secrecy and Eighth Amendment Due Process, 55 B.C. L. Rev. 1367, 1367, 1374 (2014); see also Joseph L. Hoffmann, Substance and Procedure in Capital Cases: Why Federal Habeas Courts Should Review the Merits of Every Death Sentence, 78 Tex. L. Rev. 1771, 1773–74 (2000) (“The [Furman] Court chose to characterize these procedural flaws as violations of the Eighth Amendment, thus giving rise to the so-called ‘super due process’ interpretation of that constitutional provision that prevails today.”).

      [292].     Ford, 477 U.S. at 401–05, 410–13.

      [293].     Atkins v. Virginia, 536 U.S. 304, 306–07, 317, 321 (2002).

      [294].     Miller v. Alabama, 567 U.S. 460, 465, 483, 487 (2012).

      [295].     Panetti v. Quarterman, 551 U.S. 930, 934–35 (2007) (finding Florida’s competency procedures unconstitutional); Hall v. Florida, 572 U.S. 701, 721–24 (2014) (holding that a state may not refuse to consider evidence of intellectual disability for defendants with a threshold IQ of 70); Moore v. Texas, 581 U.S. 1, 20 (2017) (finding Texas’s procedures for determining intellectual disability unconstitutional); Jones v. Mississippi, 593 U.S. 98, 106 (2021) (quoting Miller, 567 U.S. at 483) (“Miller mandated ‘only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing’ a life-without-parole sentence.”).

      [296].     Furman v. Georgia, 408 U.S. 238, 249 (1972) (Douglas, J., concurring).

      [297].     Id. (quoting Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1790 (1970)).

      [298].     Id. at 255.

      [299].     Radin, supra note 291, at 1150–51.

      [300].     McCleskey v. Kemp, 481 U.S. 279, 308, 313 (1987).

      [301].     Id. at 313.

      [302].     Lee Kovarsky, Muscle Memory and the Local Concentration of Capital Punishment, 66 Duke L.J. 259, 323, 327 (2016); see also supra Part II.B.1 (discussing the Court’s history of 0.1.   supplanting racial discrimination with arbitrariness in its Eighth Amendment jurisprudence).

      [303].     Kovarsky, supra note 302, at 327.

      [304].     See Chemerinsky, supra note 60, at 9 (discussing how nonoriginalists rely on a combination of factors to interpret the Constitution, including the text, the Framers’ intent, the structure of the Constitution, tradition, precedent, and modern social needs); see also Phillip Bobbitt, Constitutional Interpretation 12–13, 31 (1991) (discussing six modalities of constitutional interpretation appearing in the Court’s opinions and noting that “[a] single modality cannot be both comprehensive and determinate”).

      [305].     U.S. Const. amend. VIII.

      [306].     See John D. Bessler, Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment 163, 186 (2012).

      [307].     1 Annals of Cong. 754 (1789); Bessler, supra note 306, at 186.

      [308].     Bessler, supra note 306, at 163.

      [309].     John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment As A Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1775, 1798–99 (2008).

      [310].     Id.; Markus D. Dubber, ‘An Extraordinarily Beautiful Document’: Jefferson’s ‘Bill for Proportioning Crimes and Punishments’ and the Challenge of Republican Punishment, in Modern Histories of Crime and Punishment 115, 116 (Markus D. Dubber & Lindsay Farmer eds., 2007); Laurence Claus, The Antidiscrimination Eighth Amendment, 28 Harv. J.L. & Pub. Pol’y 119, 129 (2004); Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif. L. Rev. 839, 840 (1969).

      [311].     Fiss, supra note 45, at 107–08.

      [312].     Chief Justice Earl Warren cited this imprecision as a basis for concluding that the scope of the Eighth Amendment was “not static” and that it therefore “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).

      [313].     Bessler, supra note 306, at 186.

      [314].     The only two recorded comments “in the debates of the First Congress on the Bill of Rights” concerned its “vagueness.” Bessler, supra note 308, at 186; 1 Annals of Cong. 754 (1789); Stinneford, supra note 309, at 1808–09.

      [315].     Bessler, supra note 313, at 187; Stinneford, supra note 309, at 1788–89, 1807.

      [316].     Bessler, supra note 313, at 187; Stinneford, supra note 309, at 1776, 1807–09.

      [317].     Stinneford, supra note 309, at 1799–1800.

      [318].     Claus, supra note 310, at 136.

      [319].     See U.S. Const. art. I, § 2 (three-fifths clause); id. art. 1, § 9, cl. 1 (protecting the trade of enslaved people); id. art. IV, § 2, cl. 9 (fugitive slave clause).

      [320].     Chemerinsky, supra note 60, at 78.

      [321].     Bryan A. Stevenson, The Eighth Amendment: A Contemporary Perspective, Nat’l Const. Ctr., https://constitutioncenter.org/interactive-constitution/interpretation/amendment-viii/clauses/103#the-eighth-amendment-a-progressive-perspectiere [https://perma.cc/5B8A-LC27] (last visited July 30, 2024); William N. Eskridge, Gaylaw: Challenging the Apartheid of the Closet, 157 (1999).

      [322].     Balkin, supra note 58, at 2345.

      [323].     Id. at 2350; see U.S. Const. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States . . . .”)

      [324].     Balkin, supra note 58, at 2348–49.

      [325].     Akhil Reed Amar, Attainder and Amendment 2: Romer’s Rightness, 95 Mich. L. Rev. 203, 214–18 (1996).

      [326].     Id. at 218.

      [327].     See Christopher R. Adamson, Punishment after Slavery: Southern State Penal Systems, 1865-1890, 30 Soc. Probs., 555, 555 (1983) (explaining that enslaved people were exempted from the state punishment system prior to the Civil War and instead punished via “plantation justice”).

      [328].     See id.

      [329].     See, e.g., Dred Scott v. Sandford, 60 U.S. 393, 404–05 (1857) (holding that Black people at the time of the Founding “were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them”); Noah Feldman, James Madison’s Lessons in Racism, N.Y. Times (Oct. 28, 2017), https://www.nytimes.com/2017/10/28/opinion/sunday/james-madison-racism.html [https://perma.cc/82VS-F6LH] (observing that, like many of the Framers, James Madison’s theoretical principles of equality did not trump his economic interest in slaveholding).

      [330].     Claus, supra note 310, at 121. Claus does not address whether his “nondiscrimination principle” takes into account an individual’s group membership or social standing or if all individuals are to be treated identically. Accordingly, his nondiscrimination principle is consistent with both anticlassification and antisubordination theories of equality.

      [331].     Id. at 122.

      [332].     Id. at 122, 136.

      [333].     Id. at 135–43.

      [334].     Id. at 144-45 (quoting 4 William Blackstone, Commentaries *371).

      [335].     Id. at 149. Claus does not address the relevance of a group’s position in the social hierarchy. Thus, whether an Eighth Amendment antidiscrimination principle would better resemble an anticlassification approach or an antisubordination approach is not a question Claus contemplates.

      [336].     Foner, supra note 239, at xx.

      [337].     Carter, supra note 239, at 1065, 1067–72.

      [338].     See Foner, supra note 239, at 47–48 (discussing the adoption of the Black Codes by Southern states following the Civil War).

      [339].     Id.

      [340].     Id. at 48.

      [341].     Id.

      [342].     See Cong. Globe, 39th Cong., 1st Sess. 88 (1866) (Charles Sumner presenting a petition from the people of Massachusetts declaring “that emancipation is not complete as long as the [B]lack codes exist”); id. at 111 (Sen. Wilson discussing “vagrant laws” resulting in forced labor); id. at 340 (“The law of one of the States requires the freedmen to have a residence and a home within twenty days, but it forbids the renting or purchasing of land to them outside of the large towns. What is the poor freedman to do? . . . There he is a vagrant to be arrested and sold to labor. The tendency of such legislation as that is to continue him an ignorant, degraded, and dependent laborer.”); id. at 588–89 (chronicling Black Codes of various Southern states); id. at 603 (Sen. Wilson discussing Black Codes and “vagrant laws” resulting in forced labor).

      [343].     Whether the Reconstruction Congress intended to formally incorporate all protections in the Bill of Rights against the states is the subject of considerable scholarly debate. See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 215–23 (1998) (proposing a theory of “refined incorporation”); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 Stan. L. Rev. 5, 138 (1949) (arguing that historical records do not support total incorporation). Historian Eric Foner has noted that Ohio Congressman John Bingham, one of the primary architects of the Fourteenth Amendment, and Senator Jacob Howard, who presented the Amendment to the Senate, made explicit statements that the Fourteenth Amendment bound states to follow the Bill of Rights. Foner, supra note 239, at 74–75. Despite these statements, the Supreme Court did not recognize formal incorporation until many years later. In Twining v. New Jersey, 211 U.S. 78 (1908), the Court entertained the possibility that the Due Process Clause of the Fourteenth Amendment might incorporate a portion of the Bill of Rights. Selective incorporation continued over the next century, concluding with the incorporation of the Eighth Amendment’s Excessive Fines Clause in Timbs v. Indiana, 139 S. Ct. 682 (2019).

      [344].     See Barron v. City of Baltimore, 32 U.S. 243 (1833) (holding that the Bill of Rights did not apply to the states).

      [345].     See Paul S. Hudnut, State Constitutions and Individual Rights: The Case for Judicial Restraint, 63 Denv. U. L. Rev. 85, 85 (1985) (“State constitutions were originally the only source of protection against the states’ authority.”); Cong. Globe, 39th Cong., 1st Sess. 2766 (1866) (declaring states are restrained from violating individual rights only by “their own local constitutions”).

      [346].     See Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. Rev. 863, 866–67, 884–85 (1986).

      [347].     Id. at 866–67, 872–74.

      [348].     Cong. Globe, 39th Cong., 1st Sess. 1088 (1866) (Congressman John Bingham, one of the drafters of the Fourteenth Amendment, explaining that one of the purposes of the amendment was to provide Congress with the authority to enforce the Bill of Rights against the states).

      [349].     Id. at 2542.

      [350].     Id. at 2766.

      [351].     Cong. Globe, 39th Cong., 2d Sess. 810 (1867).

      [352].     Id. at 811.

      [353].     See H.R. Exec. Doc. No. 11, 39th Cong., 1st Sess., at 22 (1865); see also Schnapper, supra note 244, at 760–61. As Eric Schnapper posits, the existence of legislation of this type, which created different laws, benefits, and legal structures for Black Americans, reveals that the Reconstruction Congress was not averse to racial classifications with remedial effects. Id.at 754, 760–61.

      [354].     Bobbitt, supra note 304, at 20.

      [355].     Id.

      [356].     See id. at 14–15.

      [357].     See id.

      [358].     U.S. Const. amend. VIII.

      [359].     Id. art. I, § 3, cl. 7.

      [360].     Id. art. I, § 5, cl. 2.

      [361].     Id. art. I, § 8, cl. 6.

      [362].     Id. art. I, § 8, cl. 10.

      [363].     Id. art. III, § 3, cl. 2.

      [364].     See id. art. I.

      [365].     Phillip Bobbitt would describe this analysis as employing an “ethical modality” of constitutional interpretation. See Bobbitt, supra note 304, at 13, 20. Like a structural reading, an ethical modality infers constitutional meaning by considering the document as a whole. Id. But instead of focusing on institutional relationships, an ethical modality involves appeals to the American cultural norms that undergird the Constitution. Id. While a structural interpretation focuses on “powers granted to government[],” an ethical interpretation typically emphasizes “the powers denied to government.” Id.

      [366].     See U.S. Const. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”).

      [367].     See U.S. Const. art. III, § 3, cl. 2 (“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”).

      [368].     See generally Foner, supra note 239.

      [369].     Weems v. United States, 217 U.S. 349 (1910). The punishment, known as cadeña temporal, was imposed under the laws of the Philippines, which was then a U.S. colony. Id. at 357–360, 363.

      [370].     Id. at 373.

      [371].     Trop v. Dulles, 356 U.S. 86, 100­–01 (1958).

      [372].     See supra notes 65–72 and accompanying text; see also Margaret Hu, Algorithmic Jim Crow, 86 Fordham L. Rev. 633, 664 (2017).

      [373].     See Miller, supra note 28; see also supra Part I.B.1 (discussing the Supreme Court’s focus on arbitrariness instead of racial discrimination).

      [374].     See supra note 179.

      [375].     See, e.g., Graham v. Florida, 560 U.S. 48, 68 (2010) (describing children as less culpable for their crimes in part due to their vulnerability); Atkins v. Virginia, 536 U.S. 304, 306–07, 318 (2002) (describing people with intellectual disability as less culpable due to their “diminished capacities”).

      [376].     See supra notes 11–15 and accompanying text.

      [377].     See Woodson v. North Carolina, 428 U.S. 280, 301, 303–04 (1976) (introducing the individualized sentencing requirement); Miller, Eighth Amendment Power, supra note 117, at 813–14 (discussing the individualized sentencing requirement).

      [378].     See Chemerinsky, supra note 60, at 9 (noting that most Justices consider a combination of factors in interpreting the constitution, including modern social needs); see also Bobbitt, supra note 304, at 13 (discussing a prudential modality of constitutional interpretation).

      [379].     See Bobbitt, supra note 304, at 13, 16–17.

      [380].     See id. at 16–17.

      [381].     See, e.g., Inimai M. Chettiar & Nicole Austin-Hillery, The ‘Mass Incarceration Crisis,’ Brennan Ctr. for Just. (Apr. 28, 2014), https://www.brennancenter.org/our-work/research-reports/mass-incarceration-crisis [https://perma.cc/6ZQR-YN6A]; The Keys to Our Mass Incarceration Crisis -- and Who Holds Them, ACLU Wash. (Aug. 12, 2022), https://www.aclu-wa.org/story/keys-our-mass-incarceration-crisis-and-who-holds-them%C2%A0 [https://perma.cc/BCY5-WH8M]; Terry Gross, Lawyer Combats America’s ‘Huge Crisis’ of Mass Incarceration, NPR: Fresh Air (Dec. 9, 2020), https://www.npr.org/2020/12/09/944586352/lawyer-combats-americas-huge-crisis-of-mass-incarceration [https://perma.cc/CWF6-QV4P]; Emily Bazelon & Eric Gonzales, Dist. Att’y, Kings Cnty. Dist. Att’y’s Off., Discussion at a New York City Bar Event: What Role Should Prosecutors Play in Ending the Mass Incarceration Crisis? (May 13, 2019); Jacopo Prisco, Prison Nation: Portraits from a Mass Incarceration Crisis, CNN, (Feb. 28, 2018), https://www.cnn.com/style/article/prison-nation-aperture-magazine/index.html [https://perma.cc/VAZ6-RARQ].

      [382].     While activists may see these questions as necessary preconditions for transformative change, it is doubtful that judges engaging in constitutional interpretation would view them as positive outcomes.

      [383].     Bobbitt, supra note 304, at 17.

      [384].     Such sweeping benefits do not negate the potential political costs of such a ruling. Protection of minority rights is not always popular. While critics on the right may complain of favoritism for special groups, those on the left may see such an approach as a legitimizing half-measure. As a result, Justices applying a prudential interpretation of the Eighth Amendment would likely implicitly consider the potential fallout from the approach alongside its potential to reestablish the Court’s Eighth Amendment relevance. While some Justices might be reluctant to enter the fray, others would likely see doing so as a path to restored legitimacy and power.

      [385].     See supra Part I.B.1 (discussing the history behind the Supreme Court’s decisions emphasizing arbitrariness, not racial discrimination, as the primary harm of capital sentencing).

      [386].     See id.

      [387].     See supra Parts I.B.3, I.B.4 (explaining the Court’s history of applying greater scrutiny to capital sentences than noncapital sentences).

      [388].     In 2024, approximately 1.9 million people were incarcerated. Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2024, Prison Pol’y Initiative (Mar. 14, 2024), https://www.prisonpolicy.org/reports/pie2024.html [https://perma.cc/W42C-395R]. 2022 year-end statistics from January 1, 2023, show that only 2,331 people were serving death sentences. Death Penalty Info. Ctr., The Death Penalty in 2023: Year End Report 3, 24 (2023), https://dpic-cdn.org/production/documents/reports/year-end/Year-End-Report-2023.pdf?dm=1701385056 [https://perma.cc/RYX6-A8YZ].

      [389].     See supra Part I.B.V (discussing how current Supreme Court jurisprudence suggests that collateral consequences—the civil consequences of criminal convictions—constitute regulation, not punishment).

      [390].     Scholars have previously proposed that “unusual” punishments are those that are discriminatory in application. See Goldberg & Dershowitz, supra note 297, at 1790. An antisubordination interpretation of “unusual” requires not only that the punishment be racially discriminatory in application, but that the racial discrimination be suffered by members of subordinate groups.

      [391].     An Eighth Amendment challenge to a sentencing decision amounts to a constitutional challenge to the state’s or government’s sentencing statute, as applied to the defendant.

      [392].     An Eighth Amendment claim of this type should be raised in postconviction litigation. To avoid a ripeness challenge, the claim must be raised following imposition of a sentence. Moreover, it is impractical to present a sophisticated statistical analysis before knowing what the court’s sentencing decision is. The time between conviction and sentence is often brief, making the compilation of relevant statistics burdensome. Direct appeal is also an inappropriate avenue for the claim because review is limited to errors evident on the face of the trial record, which would not contain data concerning other sentencing outcomes. Postconviction litigation, either in the form of a motion for new trial or state habeas litigation, would allow for an evidentiary hearing where statistical evidence could be introduced.

      [393].     Mechanically, claims of disparate impact under the punishment clause would proceed as they have in the equal protection, Title VII, or Fair Housing context. A petitioner would present evidence of a prima facie case of disparate impact, typically via expert testimony concerning statistical analysis of punishment outcomes. The government would then have the opportunity to rebut the petitioner’s evidence.

      [394].     Evidence of disparate impact typically takes the form of statistical analysis. See, e.g., Merrick T. Rossein, 1 Employment Discrimination Law and Litigation § 2:39 n.7 (Dec. 2023 2 ed.), Westlaw EMPLL (indicating that all Supreme Court cases in the employment discrimination context approve of a statistical showing to establish disparate impact).

      [395].     Traditionally, the Supreme Court has considered two buckets of penological interests in assessing the constitutionality of punishment: the consequentialist goals of deterrence, incapacitation, and rehabilitation, alongside the deontological goal of retribution. See Ewing v. California, 538 U.S. 11, 25 (2003). However, scholars and reformers have proposed new sentencing goals, including restoration and repair, which states could also assert as compelling interests. See Nelson et al., supra note 61, at 34, 36; Erik Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice, 2003 Utah L. Rev. 205, 288 (2003).

      [396].     Daryl Atkinson & Jeremy Travis, The Square One Project, The Power of Parsimony, 4 (2021), https://squareonejustice.org/wp-content/uploads/2021/05/CJLJ8747-Square-One-Parsimony-Report-WEB-210524.pdf [https://perma.cc/Q24U-6J65].

      [397].     Cesare Beccaria argued that, to be just, punishments must be “necessary, the least possible in the case given,” and attributed to Montesquieu the proposition that “[e]very punishment which does not arise from absolute necessity . . . is tyrannical.” Cæsar Bonesana, Marquis Beccaria, An Essay on Crimes and Punishments 17, 160 (Edward D. Ingraham trans., Philadelphia, Philip H. Nicklin 1819) (1764). Jeremy Bentham grounded his utilitarian approach to punishment in parsimony: “[A]ll punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.” Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 158 (J. H. Burns & H. L. A. Hart eds., Oxford Univ. Press 1996) (1789). Modern legal scholar Norval Morris conceptualized parsimony as the opposite of cruelty, declaring that “[j]ustification for this utilitarian and humanitarian principle follows from the belief that any punitive suffering beyond societal need is, presumably, what defines cruelty.” Norval Morris, The Future of Imprisonment: Toward a Punitive Philosophy, 72 Mich. L. Rev. 1161, 1163 (1974).

      [398].     See. e.g., United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 806–07, 827 (2000) (applying the “least restrictive means” test to content regulation of speech); Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 718–19 (1981) (applying the “least restrictive means” test to a state’s infringement on religious liberty).

      [399].     The least restrictive means test applies to federal action that infringes on religious freedom under the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). 42 U.S.C. § 2000bb-1(a), (b); 42 U.S.C. § 2000cc–1(a).

      [400].     See, e.g., N.Y. Crim. Proc. Law § 510.10 (McKinney 2022) (amended 2023) (requiring in the bail context that “the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court”).; Ohio Rev. Code Ann. § 2937.011 (West 2023) (requiring in the bail context that “the court shall release the defendant on the least restrictive conditions that, in the discretion of the court, will reasonably assure the defendant’s appearance in court, the protection or safety of any person or the community, and that the defendant will not obstruct the criminal justice process”). In 2023, the New York legislature removed the parsimony language in the bail statute in favor of the broader command that judges “consider the kind and degree of control or restriction necessary to reasonably assure the principal’s return to court.” N.Y. Crim. Proc. Law § 510.10 (McKinney 2023).

      [401].     See 18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) . . . .”).

      [402].     See Ramirez v. Collier, 142 S. Ct. 1264, 1278–79, 1283 (2022) (considering state’s historical practice in assessment of least restrictive means test); id. at 1288 (Kavanaugh, J., concurring) (“Although the compelling interest and least restrictive means standards are necessarily imprecise, history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.”).

      [403].     See generally Crenshaw, supra note 59, at 139–40 (introducing the concept of intersectionality).

      [404].     See generally Thusi, supra note 59, at 183–84 (arguing that “formerly incarcerated women are disproportionately impacted by the collateral legal consequences of criminal conviction because of their intersectional identities”); Ajunwa, supra note 59, at 3002 (identifying that formerly incarcerated women disproportionately experience collateral legal consequences as a result of their intersectional identities); Kimberlé W. Crenshaw, From Private Violence to Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control, 59 UCLA L. Rev. 1418, 1435 (2012) (discussing intersectional oppression of women and girls of color under mass incarceration); see generally Subini Ancy Annamma, David Connor & Beth Ferri, Dis/ability Critical Race Studies (DisCrit): Theorizing at the Intersection of Race and Dis/ability, 16 Race, Ethnicity & Educ. 1, 12, 23 (2013) (calling for scholarship that centers the intersection of race and dis/ability).

      [405].     Alexander, supra note 66, at 25–74.

      [406].     See, e.g., McCleskey v. Kemp, 481 U.S. 279, 286–87 (1987) (discussing results of the Baldus Study).

      [407].     Ross Kleinstuber, McCleskey and the Lingering Problem of “Race,” in Race and the Death Penalty: The Legacy of McCleskey v. Kemp 37, 38 (David P. Keys & R.J. Maratea eds., 2016) (indicating that thirty-two of thirty-six empirical studies on racial discrimination in capital punishment concluded “that death sentences [we]re more likely when the victim [wa]s white, the defendant [wa]s [B]lack, or both”).

      [408].     See Miller, Resurrecting, supra note 117, at 1349 (discussing these stereotypes).

      [409].     See, e.g., Death Penalty Info. Ctr., Broken Promises: How a History of Racial Violence and Bias Shaped Ohio’s Death Penalty 18–19 (2024), https://dpic-cdn.org/production/documents/pdf/DPIC-Ohio-Report-Broken-Promises.pdf?dm=1715717811 [https://perma.cc/CJ69-CEFX] (indicating that, ten years after a bipartisan task force recommended several legislative measures to reduce racial disparities in Ohio’s administration of capital punishment, none had been enacted).

      [410].     Ky. Rev. Stat. Ann. § 532.300 (Baldwin 1998).

      [411].     N.C. Gen. Stat. Ann. §§ 15A-2010, 2011 (West 2009) (repealed 2013).

      [412].     Cal. Penal Code § 745 (West 2020) (amended 2022).

      [413].     § 532.300(1); § 15A-2010.

      [414].     §§ 532.300(1), (2), (5).

      [415].     Matt Smith, ‘Racial Justice Act’ Repealed in North Carolina, CNN (June 21, 2013), https://www.cnn.com/2013/06/20/justice/north-carolina-death-penalty/index.html [https://perma.cc/BE3B-HJHK].

      [416].     State v. Ramseur, 843 S.E.2d 106, 110 (N.C. 2020). The North Carolina Supreme Court ultimately invalidated retroactive application of the repeal. Id. at 107–08.

      [417].     Cal. Penal Code § 745 (West 2023).

      [418].     A.B. 256, 2021–2022 Leg., Reg. Sess (Cal. 2022) (enacted).

      [419].     Young v. Superior Ct. of Solano Cnty., 79 Cal. App. 5th 138, 145 (2022) (remanding to the trial court); see also Colleen V. Chien, W. David Ball & William A. Sundstrom, Proving Actionable Racial Disparity Under the California Racial Justice Act, 75 UC L.J. 1, 4, 19–23 (2023) (discussing Young).

      [420].     See Chien et al., supra note 419, at 3–4, 19–23 (quoting Penal § 745).

      [421].     See Miller, supra note 28, at 130–31.

      [422].     See id.; see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 69 (1980) (“[I]t makes no sense to employ the value judgments of the majority as the vehicle for protecting minorities from the value judgments of the majority.”); Erwin Chemerinsky, The Supreme Court, 1988 Term –– Foreword: The Vanishing Constitution, 103 Harv. L. Rev. 43, 88 n.200 (1989) (“The preferences of the majority should not determine the nature of the [E]ighth [A]mendment or of any other constitutional right.”).

      [423].     Soldal v. Cook Cnty., 506 U.S. 56, 70 (1992).

      [424].     See supra Part II.C (detailing the majority’s adoption of an anticlassification approach to equal protection jurisprudence).

      [425].     The fact that current Fourteenth Amendment jurisprudence appears to permit racially disparate sentencing does not forestall a successful Eighth Amendment claim. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 49 (1993) (“We have rejected the view that the applicability of one constitutional amendment preempts the guarantees of another.”).

      [426].     See Kerry Abrams & Brandon L. Garrett, Cumulative Constitutional Rights, 97 B.U. L. Rev. 1309, 1330 (2017).

      [427].     Id. at 1343.

      [428].     Id. at 1331–38.

      [429].     See supra Part III.A (discussing the doctrinal overlap between the Eighth and Fourteenth Amendments).

      [430].     U.S. Const. amend. XIII.

      [431].     See supra Part III.B.1 (discussing enactment of the Black Codes during Reconstruction).

      [432].     See id. (discussing circumstances surrounding the enactment of the Fourteenth Amendment).

      [433].     Slaughter-House Cases, 83 U.S. 36, 69 (1872); see also id. at 37 (“While the thirteenth article of amendment was intended primarily to abolish African slavery, it equally forbids Mexican peonage or the Chinese coolie trade, when they amount to slavery or involuntary servitude; and the use of the word ‘servitude’ is intended to prohibit all forms of involuntary slavery of whatever class or name.”).

      [434].     Daniel R. Correa, The Slavery Clause and Criminal Disenfranchisement: How the Thirteenth Amendment Informs the Debate on Crime-Based Franchise Restrictions, 53 Loy. U. Chi. L.J. 89, 142 (2021). Professor Correa presents as evidence a House resolution on the exception that clarifies that the Thirteenth Amendment abolishes slavery but permits “‘imprisonment or other restraint of freedom under the immediate control of officers of the law and according to the usual course.’” Id. at 131 (emphasis omitted) (quoting Cong. Globe, 39th Cong., 2d Sess. 344 (1867)).

      [435].     Id. at 142.

      [436].     481 U.S. 279 (1987).

      [437].     501 U.S. 957 (1991).

      [438].     481 U.S. at 306–13.

      [439].     See 501 U.S. at 1001 (Kennedy, J., concurring); Lee, supra note 187, at 693 (explaining that Kennedy’s concurrence “came to assume the status of law”).

      [440].     McCleskey was a 5-4 decision with three separate dissents. 481 U.S. at 321 (Brennan, J., dissenting); id. at 345 (Blackmun, J., dissenting); id. at 366 (Stevens, J., dissenting). Harmelin was a plurality decision, with Justice Kennedy’s concurrence, as the narrowest decision, considered binding. 501 U.S. at 1001 (Kennedy, J., concurring); Lee, supra note 187, at 693.

      [441].     See, e.g., Gruber, supra note 68, at 1364 (describing McCleskey as deserving of a “place of infamy alongside Dred Scott, Plessy, and Korematsu”); Race and the Death Penalty: The Legacy of McCleskey v. Kemp, supra note 407 (featuring twelve scholarly essays critical of McCleskey); John H. Blume & Sheri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37, 38–52 (2012) (comparing McCleskey to Plessy v. Ferguson); David G. Savage, Supreme Court Report: How Did They Get It So Wrong?, A.B.A. J., Jan. 2009, at 20 (discussing a 2008 survey of liberal law professors that ranked McCleskey in top tier of worst Supreme Court decisions of all time); Barkow, supra note 40, at 1156–62 (criticizing the Court’s approach to noncapital proportionality review in Harmelin); John F. Stinneford, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, 97 Va. L. Rev. 899, 976–77 (2011) (criticizing the Court’s methodology and result in Harmelin).

      [442].     Meghan J. Ryan, Does Stare Decisis Apply in the Eighth Amendment Death Penalty Context?, 85 N.C. L. Rev. 847, 848–49 (2007).

      [443].     481 U.S. at 286–87, 299–313.

      [444].     501 U.S. at 961; id. at 1009 (Kennedy, J., concurring); Lee, supra note 187, at 693.

      [445].     See, e.g., Harmelin, 501 U.S. at 998–1001 (Kennedy, J., concurring) (discussing departure from prior noncapital proportionality caselaw without overruling those cases).

      [446].     597 U.S. 215 (2022).

      [447].     See id. at 225–31.

      [448].     Id. at 332–33 (Thomas, J., concurring).

      [449].     Id. at 268 (majority opinion).

      [450].     Id.

      [451].     There is sufficient ammunition to conclude that both McCleskey and Harmelin are erroneous and rely on poor reasoning. The McCleskey opinion eschewed Furman’s substantive holding that the Eighth Amendment prohibits arbitrary sentencing outcomes in favor of a mindless proceduralism. The McCleskey Court found that the Eighth Amendment only guaranteed certain procedures—ignoring that these procedures had been put in place to bring about fair outcomes—and that arbitrary or racially disparate outcomes were merely an unfortunate side effect of sentencer discretion. 481 U.S. at 302–13. Moreover, the Court unabashedly considered policy issues the parties had never briefed to reject the Eighth Amendment argument against racially disparate sentencing. Id. at 314–19 (discussing ways in which “McCleskey's claim . . . throws into serious question the principles that underlie our entire criminal justice system”); Warren McCleskey, Petitioner, v. Ralph M. Kemp, Superintendent, Georgia Diagnostic & Classification Center., 1986 WL 727359, at *i–*iv (containing no briefing on larger implications the for criminal justices or on instances of nonracial discrimination); Warren McCleskey, Petitioner, v. Ralph Kemp, Superintendent, Georgia Diagnostic and Classification Center, Respondent., 1986 WL 727361, at *ii (same); Warren McCleskey, Petitioner, v. Ralph M. Kemp, Superintendent, Georgia Diagnostic & Classification Center., 1986 WL 727363, at *i–ii (same). Harmelin similarly ignored the Court’s previous decisions in Trop and Weems, which assessed noncapital cases under the same standard as capital cases, and instead formulated a new gross proportionality requirement for noncapital cases. Not only was this conclusion historically suspect, but it also lacked the backing of a majority of the Court. See Stinneford, supra note 441, at 908, 926–61, 976 (discussing historical understandings of proportionality and criticizing the Harmelin Court); supra note 440 and accompanying text.

                    With respect to their “effect on other areas of law,” aspects of both cases favor their overruling. In McCleskey, despite its longtime “death is different” principle, the Court effectively applied the ruling to noncapital cases. See 481 U.S. at 315. Moreover, McCleskey’s Fourteenth Amendment analysis injected changing equal protection requirements—like the requirement to prove individualized discrimination—into the Eighth Amendment context. Id. at 308. Harmelin has also impacted other areas of Eighth Amendment law. In Graham v. Florida, the Court maneuvered around Harmelin by creating a “children are different” jurisprudence that applied death penalty proportionality to the noncapital sentence of life imprisonment, but only when imposed on children. See 560 U.S. 48, 59–62 (2010); id. at 91–92 (Roberts, J., concurring).

                    Finally, criminal defendants do not have traditional reliance interests in either McCleskey or Harmelin because these cases have foreclosed avenues of relief for them. Legislative bodies could argue that they rely on these cases as indicators of stability, but it is unlikely that the Court would find such arguments compelling as—in the racially disparate sentences case—they expose a judicial protection for abhorrent outcomes.  

      [452].     See McCleskey, 481 U.S. at 314–15 (“McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. . . . [I]f we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.”).

      [453].     Cf. Fiss, supra note 45, at 154 (“The injustice of the political process must be corrected, and perhaps as a last resort, that task falls to the judiciary.”).

      [454].     See supra Part IV.A.2 and accompanying notes (discussing how an Antisubordination Eighth Amendment could operate in practice). This requirement would also create significant access issues for low-income defendants. While a feature for those concerned about administrability, this is undoubtedly a bug for racial justice advocates.

      [455].     Nine states have already taken steps to enact legislation of this type. Nicole D. Porter, Racial Impact Statements, The Sent’g Project (June 16, 2021), https://www.sentencingproject.org/reports/racial-impact-statements/ [https://perma.cc/5CWB-CJX4].

      [456].     Erwin Chemerinsky, Originalism Has Taken Over the Supreme Court, ABA J. (Sept. 6, 2022), https://www.abajournal.com/columns/article/chemerinsky-originalism-has-taken-over-the-supreme-court [https://perma.cc/PUG2-DCD3] (describing three Justices as “self-avowed originalists” and noting that “[a]ll of the conservatives often write their opinions in originalist language and sign on to expressly originalist decisions”).

      [457].     See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (noting, in a portion of the opinion authored by Chief Justice Roberts and joined by Justices Scalia, Thomas, and Alito, that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race”); Adam Liptak, Supreme Court Seems Ready to Throw Out Race-Based College Admissions, N.Y. Times (Oct. 31, 2022), https://www.nytimes.com/2022/10/31/us/supreme-court-harvard-unc-affirmative-action.html [https://perma.cc/54FT-62LZ]. In Students for Fair Admissions, Justice Thomas explicitly rejected the notion that antisubordination theory has a place in originalist interpretation of the Equal Protection Clause: “Despite the extensive evidence favoring the colorblind view, as detailed above, it appears increasingly in vogue to embrace an ‘antisubordination’ view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks. Such a theory lacks any basis in the original meaning of the Fourteenth Amendment.” 143 S. Ct. 2141, 2185 (2023) (Thomas, J., concurring).

      [458].     See supra notes 51–56 and accompanying text.

      [459].     See Kimberly Strawbridge Robinson, Clarence Thomas Waited 30 Years for Court That Thinks Like Him, Bloomberg L. (Oct. 22, 2021) (quoting Justin Driver, Professor, Yale Law School), https://news.bloomberglaw.com/us-law-week/clarence-thomas-waited-30-years-for-court-that-thinks-like-him [https://perma.cc/HA9S-NN3P] (noting that Justice Thomas’s originalist dissents have “been able to drag ‘the constitutional conversation in his direction’”); Keith Whittington, Sowing the Seeds of an Originalist Future, L. & Liberty (Apr. 1, 2014), https://lawliberty.org/forum/sowing-the-seeds-of-an-originalist-future/ [https://perma.cc/LN6L-S5HF] (noting the role of the dissents of Justices Rehnquist and Thomas in “laying down markers” for a future conservative Court).

      [460].     See William W. Berry III, Cruel State Punishments, 98 N.C. L. Rev. 1201, 1206 (2020).

      [461].     See, e.g., State v. Bassett, 428 P.3d 343, 346 (Wash. 2018) (finding life without parole unconstitutional under the state constitution when imposed on children regardless of offense); In re C.P., 967 N.E.2d 729, 732 (Ohio 2012) (finding mandatory lifetime sex offender registration requirements violated the state’s Eighth Amendment analogue when imposed on children “tried within the juvenile system”).

      [462].     Ashley Nellis, The Sent’g Project, Mass Incarceration Trends  (2024), https://www.sentencingproject.org/reports/mass-incarceration-trends/ [https://perma.cc/93V6-NU9P] (indicating that the United States has the third highest incarceration rate in the world); Highest to Lowest - Prison Population Total, World Prison Brief, https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All [https://perma.cc/QPW4-REUG] (indicating that the United States incarcerates more people than any other nation).

       [463]     While it is possible that members of the dominant group would simply cleave off those impacted by the criminal legal system, doing so could significantly impact political power. Nearly one in five white households has an incarcerated family member. Christian E. Weller, Akua Amaning & Rebecca Vallas, America’s Broken Criminal Legal System Contributes to Wealth Inequality, Ctr. for Am. Progress (Dec. 13, 2022), https://www.americanprogress.org/article/americas-broken-criminal-legal-system-contributes-to-wealth-inequality/#:~:text=More%20than%201%20in%205,19.8%20percent%20for%20married%20couples [https://perma.cc/S5J2-URHL].

      [464].     See Amna A. Akbar, Demands for a Democratic Political Economy, 134 Harv. L. Rev. F. 90, 102 (2020) (discussing differences in reformist and nonreformist campaigns to abolish the death penalty).