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  • Print publication year: 2020
  • Online publication date: June 2020

17 - Race Discrimination in Punishment

from Part III - The Future of the Eighth Amendment


Unlike some other constitutional amendments, the Eighth Amendment was not drafted expressly to address concerns about race. So, early cases interpreting the Amendment did not consider concerns about racial disparities. The Amendment bars “excessive fines” and bans “cruel and unusual punishments,” so unlike the Equal Protection Clause of the Fourteenth Amendment, its plain language seemingly does not allow for concerns about whether the punishment is distributed equally.