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Supreme Irrelevance:
The Court’s Abdication in Criminal
Procedure Jurisprudence
Tonja Jacobi†* and Ross Berlin**
Criminal procedure is one of the Supreme Court’s most active areas of
jurisprudence, but the Court’s rulings are largely irrelevant to the actual
workings of the criminal justice system. The Court’s irrelevance takes two
forms: objectively, on the numbers, its jurisprudence fails to protect the
vast majority of people affected by the criminal justice system; and in
terms of salience, the Court has sidestepped the major challenges in the
United States today relating to the criminal justice system. These
challenges include discrimination in stops and frisks, fatal police
shootings, unconscionable plea deals, mass incarceration, and
disproportionate execution of racial minorities. For each major stage of a
person’s interactions with the criminal justice system — search and
seizure, plea-bargaining, and sentencing — the Court develops doctrines
that protect only a tiny percentage of people. This is because the Court
focuses nearly all of its attention on the small fraction of cases implicating
the exclusionary rule, trial rights, and the death penalty, and it ignores the
bulk of real-world criminal procedure — searches and seizures that turn
up no evidence of crime, plea bargains that occur outside of the courtroom,
and the sentencing of convicts for terms of years — leaving constitutional
rights unrecognized and constitutional violations unremedied.
Consistently, each issue the Supreme Court neglects has a disparate
impact on traditionally disadvantaged racial minorities. Together, this
constitutes an abdication of the Court’s responsibility.

†

Copyright © 2018 Tonja Jacobi and Ross Berlin.
Professor of Law, Northwestern Pritzker School of Law, t-jacobi@law.
northwestern.edu.
** Judicial law clerk, the Hon. Kevin G. Ross, Minnesota Court of Appeals,
R-Berlin2017@nlaw.northwestern.edu.
*

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TABLE OF CONTENTS
INTRODUCTION ................................................................................... 103
I. THE FOURTH AMENDMENT IN THE SHADOW OF EXCLUSION ..... 109
A. Terry Stops and the Problem of Racialized Policing ........... 112
B. The Doctrine of Reasonable Suspicion in the Roberts
Court ................................................................................. 115
C. The Exclusionary Rule and the Rights of the Innocent ........ 120
D. The Immunization of Racial Profiling ................................ 128
E. Returning to Relevance: A Remedy for the Majority of
Victims .............................................................................. 131
II. PLEA-BARGAINING AND THE SUB-CONSTITUTIONAL CRIMINAL
JUSTICE SYSTEM ........................................................................ 134
A. The Problem with Plea-Bargaining .................................... 137
B. Plea-Bargaining: A History of Unexplained
Constitutionality................................................................ 141
C. The Court’s Refusal to Regulate ......................................... 144
III. MASS INCARCERATION, CONSTITUTIONAL SENTENCING, AND
THE DEATH ROW CONSTITUTION.............................................. 149
A. Death Row in the Age of Mass Incarceration ...................... 150
B. Constitutionalizing Death with Non-Death Jurisprudence .. 154
C. Sentencing Weems to Death .............................................. 156
IV. EVOLVING STANDARDS OF DECENCY AND THE IRRELEVANCE
RULE......................................................................................... 166
A. The Evolving Incoherence of Evolving Standards ............... 167
B. How the Evolving Standards of Decency Doctrine Became
a Numbers Game ............................................................... 170
C. The Inconsistency of the “Objective” Evolving Standards
of Decency Doctrine Methods ............................................. 173
D. The Implicit and Explicit Irrelevance of the Evolving
Standards of Decency Doctrine .......................................... 183
CONCLUSION....................................................................................... 191
APPENDIX ............................................................................................ 194

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INTRODUCTION
Since the 1970s, incarceration in state and federal United States
jurisdictions has grown exponentially,1 making the U.S. a global
anomaly in its rate of imprisonment.2 New approaches taken by the
police, courts, prosecutors, and defense attorneys to efficiently process
this rapid escalation have both responded to and contributed to the
problem. Police have conducted an unprecedented number of “stop
and frisk” encounters with minimal suspicion,3 trials have become
exceedingly rare as nearly every criminal case is disposed of via pleabargaining,4 and the Supreme Court has more than doubled the
proportion of criminal procedure cases it hears each Term,5 even as it
has halved its overall caseload.6 Each of these responses is associated
with major social cleavages, particularly relating to traditionally
disadvantaged minorities. Young black and Latino men are stopped by
police at disproportionate rates,7 leading to cycles of distrust between
police and minorities.8 Racial minorities are incarcerated at disparate
rates and face longer sentences that are inexplicable on non-racial
terms,9 including being disproportionately subject to the death
1 There were 2.3 million people in the justice system in 2017. Press Release, Peter
Wagner & Bernadette Rabuy, Prison Policy Initiative, Mass Incarceration: The Whole
Pie 2017 (Mar. 14, 2017), https://www.prisonpolicy.org/reports/pie2017.html. The
prison population has increased 500% in the last forty years. Criminal Justice Facts,
SENT’G PROJECT, http://www.sentencingproject.org/criminal-justice-facts (last visited
Mar. 20, 2018).
2 The United States has the highest rate of incarceration in the world — 30%
higher than the second-highest nation, China, and over three times the third-highest,
Brazil — despite having a significantly lower overall population than China, and only
a slightly higher overall population than Brazil. See Highest to Lowest — Prison
Population Total, WORLD PRISON BRIEF, http://www.prisonstudies.org/highest-to-lowest/
prison-population-total?field_region_taxonomy_tid=All (last visited Mar. 20, 2018);
U.S. and World Population Clock, U.S. CENSUS BUREAU, https://www.census.gov/
popclock/world (last visited Mar. 20, 2018).
3 See infra Part I.
4 See infra Part II.
5 See infra Figure 1.
6 See infra Figure 2; see also Tonja Jacobi & Matthew Sag, The New Oral
Argument: Justices as Advocates, 94 NOTRE DAME L. REV. (forthcoming 2019)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3125357 (illustrating and discussing
this trend).
7 See Floyd v. City of New York, 959 F. Supp. 2d 540, 556 (S.D.N.Y. 2013)
(finding that many of the 4.4 million police stops conducted in New York between
January 2004 and June 2012 unconstitutionally targeted racial minorities).
8 L. Song Richardson & Phillip Atiba Goff, Implicit Racial Bias in Public Defender
Triage, 122 YALE L.J. 2626, 2638 (2013).
9 See, e.g., U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-90-57, DEATH PENALTY

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penalty.10 And recent Supreme Court opinions, in the words of one
Supreme Court Justice, “risk treating members of our communities as
second-class citizens” by enabling police to arbitrarily and routinely
target them.11
Despite doubling its criminal procedure caseload, the United States
Supreme Court has failed to address the most significant issues that
have accompanied the rise of the modern criminal justice system.
Since the 1970s, the Supreme Court has confined a disproportionate
amount of its criminal-justice jurisprudence to three major areas: (1)
the Fourth Amendment rights of criminal defendants who are found
with contraband or evidence of criminality; (2) a defendant’s rights at
trial; and (3) the constitutionality of capital sentencing practices.
Furthermore, within its death-penalty jurisprudence, the Court has
focused exclusively on (4) protecting from the death penalty only
those already least likely to receive it. But today, most people whose
Fourth Amendment rights are violated are not found with
incriminating evidence and are never charged with a crime, trials
make up less than 1% of activity in the criminal justice system, and
within that small percentage, death sentences constitute a very minor
fraction of criminal dispositions. The Supreme Court has largely
abdicated any role in regulating police stops that do not produce
evidence of criminality, plea bargains, non-capital criminal sentences,
and the massive differentials between black and white capital
defendants. This Article shows that the Court has failed to devote its
attention to the most significant contemporary issues implicating our
constitutional system of criminal justice. As a result, the Supreme
Court has become increasingly irrelevant to the operations of the
criminal justice system in the United States.
The Supreme Court has made itself irrelevant in two important
ways. First, it is objectively irrelevant on the numbers: its
jurisprudence ignores the vast majority of citizens affected by the
criminal justice system. Citizens’ most common interaction with
police is in the form of Terry stops — seizures that are brief in time

SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES 5 (1990) (examining
twenty-eight studies of capital sentencing procedures and finding that 82% show that
victim race influenced outcomes and legally relevant variables could not explain the
differences); Traci Burch, Skin Color and the Criminal Justice System: Beyond BlackWhite Disparities in Sentencing, 12 J. EMPIRICAL LEGAL STUD. 395 (2015) (establishing
that being black increases the average sentence by 4.25%, and the effect is even higher
for dark-skinned blacks).
10 See infra text accompanying notes 16–17.
11 Utah v. Strieff, 136 S. Ct. 2056, 2069 (2016) (Sotomayor, J., dissenting).

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and limited in scope,12 but nonconsensual and potentially degrading.13
Studies in numerous major cities have shown that between 88 and
98% of these stops uncover no evidence and so are mostly of actually
innocent people, and the stops are frequently based on minimal
suspicion and so are unconstitutional.14 Yet the Supreme Court has
provided practically no remedy for these violations. When evidence is
found against a person and the person is charged, about 97% of the
time the defendant will plead to a deal offered by the prosecutor.15 The
Supreme Court has offered minimal regulation of the plea-negotiation
process, leaving prosecutors with huge leverage and minimal
oversight. Once convicted, 99.95% of convicts face non-capital
sentences, yet the Supreme Court has largely given up on any
requirement of proportionality between the crime and the sentence in
the non-death penalty context. And even within capital sentences, the
Court has refused to focus on those most likely to be put to death:
more than 42% of the country’s current death-row inmates are black,
13% Latino, and only 42% white.16 Seventy-six percent of those
executed were defendants who murdered whites, while only 15% of
those executed murdered blacks, and only 7% murdered Latinos.17 Yet
the Court has refused to address whether such frequency of
application of the death penalty raises constitutional problems, instead
explicitly focusing its jurisprudence on rarity of death sentences
against other groups. Together, these four elements constitute a
jurisprudential “cone of shame,”18 in which the Supreme Court has
narrowed its focus in each stage of the criminal justice system, turning
away from the rules that apply to the vast majority of criminal
suspects, and focusing instead on the minutiae of the processes that
have become the least relevant in most people’s lives.
Second, beyond the numbers, the Supreme Court has refused to
address the most salient issues that are dividing the country. The
racial bias in police stops and frisks constitutes the modern version of
12

See Terry v. Ohio, 392 U.S. 1, 28-30 (1968).
See id. at 24-25 (“Even a limited search . . . must surely be an annoying,
frightening, and perhaps humiliating experience.”).
14 See infra Part I.
15 William T. Pizzi, The Effects of the “Vanishing Trial” on Our Incarceration Rate,
28 FED. SENT’G. REP. 330, 331 (2016).
16 DEBORAH FINS, NAACP LEGAL DEF. & EDUC. FUND, INC., CRIMINAL JUSTICE
PROJECT, DEATH ROW U.S.A.: SUMMER 2017, at 1 (2017), http://www.naacpldf.org/files/
case_issue/DRUSASummer2017.pdf.
17 Id. at 4.
18 In another context, see Cyernide, Up-Cone of Shame, YOUTUBE (Mar. 13, 2010),
https://www.youtube.com/watch?v=R58kSuIhURI.
13

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the stamp of inferiority that the Warren Court described as being
created for African-American children in segregated schools.19 Not
only is being stopped and frisked by police degrading, it is often the
first step preceding a police shooting, frequently of unarmed citizens.20
Exonerations of actually innocent people have skyrocketed in recent
years; many of those eventually vindicated were imprisoned under
plea deals.21 The problem of mass incarceration disproportionately
affects African-Americans, and the unequally lengthy sentences that
African-Americans face contribute to this directly.22 And the racial
disparities in capital punishment raise questions about the legitimacy
of that means of punishment.
Each of these issues lies within the domain of the Supreme Court,
but not only have they been sidelined by its jurisprudence, the Court
has actually structured many of its doctrines so as to be incapable of
addressing these problems. For instance, by limiting the remedy for
Fourth Amendment violations to the exclusion of evidence, the
Supreme Court has disabled itself from directly regulating police stops
that do not result in evidence production, as well as police stops that
are designed for non-evidence producing goals, such as “aggressive
policing.”23 Similarly, the Court only recognizes a capital-punishment
application as unconstitutional when so many states have ceased to
apply it that the Court can discern an “evolving consensus” against the
19

Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).
The Court was recently criticized by Justice Sotomayor for ignoring this
problem. Salazar-Limon v. City of Houston, 826 F.3d 272 (5th Cir. 2016), cert. denied,
137 S. Ct. 1277, 1282 (2017) (No. 16-515) (Sotomayor, J., dissenting from denial of
certiorari) (describing “a disturbing trend regarding the use of this Court’s resources”
in regularly reversing denials of qualified immunity, but failing to take cases where
courts have wrongfully given the benefit of the doubt to police officers).
21 As of March 20, 2018, of the 2,187 exonerations detailed in the National
Registry of Exonerations, 401 involved plea deals. NAT’L REGISTRY EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/browse.aspx (last visited Mar.
20, 2018).
22 See, e.g., David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing:
Evidence from the U.S. Federal Courts, 44 J.L. & ECON. 285 (2001) (finding that black
offenders receive significantly longer sentences, largely due to departures from the
sentencing guidelines); Darrell Steffensmeier et al., The Interaction of Race, Gender, and
Age in Criminal Sentencing: The Punishment Cost of Being Young, Black, and Male, 36
CRIMINOLOGY 763 (1998) (finding that age, gender, and race are all significant
determinants of sentencing, and young black males are more harshly sentenced than
any other group).
23 Even when establishing the lower standard of suspicion for police stops, the
Warren Court recognized, “Encounters are initiated by the police for a wide variety of
purposes, some of which are wholly unrelated to a desire to prosecute for crime.”
Terry v. Ohio, 392 U.S. 1, 13-14 (1968).
20

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practice.24 That is, the Court will only step in once its protection has
become largely unnecessary.25
Consequently, the major issues emphasized by the Court — and the
literature — tend to miss the big picture. For instance, the multidecade battle between the liberal and conservative justices over
whether the exclusionary rule should be further restricted or fully
expanded26 is irrelevant to the overwhelming majority of people
affected by illegal police encounters, who are typically not prosecuted.
Similarly, the battle in recent cases has been over the proper standard
to apply to those stops — such as when the police can be wrong on
the law yet still arrest a person for evidence found in the stop,27 and
whether anonymous tips can justify such stops;28 but these disputes all
concern suspects against whom evidence was found and disregard the
vast majority of real-world applications of Terry. And in just the last
decade, the Supreme Court has taken eight cases on the Confrontation
Clause and seventeen cases on ineffective assistance of counsel at trial,
yet it has had little to say on the process by which prosecutors garner
plea deals. In the few cases where the Court has addressed the pleanegotiation process, it has placed more duties on defense counsel,
even though some public defenders have essentially declared
bankruptcy due to their inability to deal with their existing
responsibilities.29 The vitriol expressed by the justices in these cases30

24 See Stanford v. Kentucky, 492 U.S. 361, 370-73 (1989); Coker v. Georgia, 433
U.S. 584, 593-96 (1977); Gregg v. Georgia, 428 U.S. 153, 186-87 (1976).
25 See infra Parts III, IV.
26 See infra Part I.
27 E.g., Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (“Reasonable
suspicion arises from the combination of an officer’s understanding of the facts and
his understanding of the relevant law. The officer may be reasonably mistaken on
either ground.”); see also infra Part I.
28 E.g., Navarette v. California, 134 S. Ct. 1683, 1688-89 (2014) (“[b]y reporting
that she had been run off the road by a specific vehicle,” an anonymous tip was made
reliable enough to support reasonable suspicion). See generally infra Part I.
29 See Erik Eckholm, Citing Workload, Public Lawyers Reject New Cases, N.Y. TIMES
(Nov. 8, 2008), http://www.nytimes.com/2008/11/09/us/09defender.html (reporting
that public defenders offices in at least seven states refused to take on new cases,
saying that their “overwhelming workloads . . . undermine the constitutional right to
counsel for the poor”).
30 See, e.g., Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J.,
dissenting) (criticizing the majority for enabling arbitrary stops of racial minorities,
which will “corrode all our civil liberties and threaten all our lives”); Navarette, 134 S.
Ct. at 1697 (Scalia, J., dissenting) (criticizing the “freedom-destroying cocktail” of the
majority); Miller v. Alabama, 567 U.S. 460, 500 (2012) (Roberts, C.J., dissenting)
(criticizing the jurisprudence for making “false promises of restraint”).

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and the complexity of the jurisprudence belie a fundamental truth:
that the Supreme Court’s jurisprudence is largely irrelevant.
This Article describes the three key stages of the criminal justice
process31 in the chronology experienced by the ordinary citizen: Terry
stops, plea-bargaining, and sentencing. We venture through the cone
of shame, witnessing how the rights and interests of the overwhelming
number of citizens in the criminal justice system are largely
disregarded by the Court, and analyzing the failure of the Supreme
Court to provide guidance on the most salient issues of the day. Along
the way, we recommend ways in which the Court could provide more
robust guidance. But our goal is not to promote any particular policy;
rather, our recommendation is that the Court meaningfully investigate
each of these issues and provide some form of constitutional
protection to those in the criminal justice system.
Part I describes how the Supreme Court has developed the meaning
of the Fourth Amendment almost entirely in the context of the
unrepresentative minority of cases in which people stopped and
searched by the police are found with evidence of a crime. The Court
has refused to provide a remedy to those illegally searched who
possess no evidence of a crime, focusing all its remedial attention
instead on the exclusionary rule — a remedy incapable of providing
direct protection to innocent victims of constitutional violations. Part
II examines how the Supreme Court has openly embraced the pleabargaining-as-criminal-justice regime without assuming any
meaningful role as the final arbiter of fundamental fairness in that
process. Even though almost all criminal cases are resolved via pleas,
the Supreme Court continues to devote the overwhelming bulk of its
contemporary criminal-justice jurisprudence to trial rights. Part III
explores how the Supreme Court has devoted almost all of its
jurisprudence concerning the constitutionality of sentencing practices
to the death penalty, a practice which has no measurable effect on the
United States’ anomalous mass-incarceration problem. Although the
central sentencing doctrines developed in regard to the death penalty
— such as the requirement of proportionality — were borrowed from
non-death-penalty cases, the Court has since disregarded them outside
of the capital context. Part IV shows that, even within its death31 Note that there are other areas of the criminal justice system that we do not
have space to explore, but they too have been shown to display the same neglect by
the Court. See, e.g., Tonja Jacobi et al., The Attrition of Rights Under Parole, 87 S. CAL.
L. REV. 887 (2014) (describing parole rules and how the failure to recognize the rights
of parolees leads to greater recidivism and attrition of rights of the broader
community, particularly that of minorities).

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penalty jurisprudence, the Supreme Court has embraced the principle
of rarity (i.e., the infrequency of a criminal-justice practice) as a
barometer of Supreme Court action. Only when a sentencing practice
is virtually non-existent will the Supreme Court comment on its
constitutionality. Despite the Court’s potentially groundbreaking
decision in Miller v. Alabama,32 the Court continues to employ an
evolving standards of decency doctrine based on the infrequency of
particular practices to restrict its jurisprudence to issues that are by
definition irrelevant.
Throughout, we consider the significance of the Court’s
jurisprudential myopia for racial minorities: we submit that the
overarching theme of the Court’s jurisprudence has been an
abnegation of its responsibility on the very doctrines that most drive
the substantial and significant differential impact experienced by
minorities, particularly African-Americans. We do not comment on
whether this is by design, but there is no doubt that the most pressing
modern criminal-justice issues center around the treatment of AfricanAmericans by police, prosecutors, and judges. This failure by the
Supreme Court is not simply unfair and jurisprudentially sloppy, it is
contributing to some of the major contemporary schisms in U.S.
society.
I.

THE FOURTH AMENDMENT IN THE SHADOW OF EXCLUSION

After the turn of the century, the practice of “stop and frisk” in New
York City rose dramatically, from 97,296 people stopped in 2002, to
685,724 in 2011.33 The New York Civil Liberties Union revealed the
extreme racial disparities engendered by this practice, finding that
89.7% of stops conducted from 2003 until 2013 were of non-whites.34
The report also noted a less heralded fact: of the nearly five million
stops recorded between 2003 and 2013, 88.1% did not result in the
discovery of incriminating evidence, a citation, or an arrest.35
Temporary detentions in other major cities mirror the New York
pattern.36
32 Miller, 567 U.S. at 465 (holding that mandatory sentences of life without parole
for juvenile offenders are unconstitutional).
33 CHRISTOPHER DUNN, N.Y. CIVIL LIBERTIES UNION, STOP AND FRISK DURING THE
BLOOMBERG ADMINISTRATION 2002–2013, at 2 (2014), https://www.nyclu.org/sites/
default/files/publications/stopandfrisk_briefer_2002-2013_final.pdf.
34 Id. at 4. Non-whites were 66.7% of the New York City population. Jacobi et al.,
supra note 31, at 960.
35 Id. at 14.
36 In Boston, from 2007 to 2010, police disproportionately targeted minorities in the

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These reports suggest that the majority of people subjected to stops
— a disproportionate number of whom are minorities — are innocent
of any crime. The likelihood that a person temporarily detained by
police will be innocent stands in stark contrast with the factual
situations at issue in the Supreme Court’s decisions interpreting and
applying the Fourth Amendment to the Terry doctrine of reasonable
suspicion,37 which it develops and applies almost exclusively in cases
where incriminating evidence has been found on the person asserting
his or her rights. The Supreme Court is consistently addressing
exceptional Fourth Amendment situations, while ignoring the most
common scenario.
Not only does the Supreme Court almost exclusively consider cases
in which evidence is found, it provides little remedy for those who
experience violations but against whom evidence is not found. Since
1961, the principal remedy for a Fourth Amendment violation has
been the exclusion at trial of incriminating evidence discovered as a
result of police violations.38 While the Supreme Court has considered
civil-rights claims based upon Fourth Amendment violations, it has
not developed rules governing police conduct in situations that do not
result in the discovery of evidence. In fact, the Court has created a
major obstacle to such development: public officials are immune from
civil constitutional claims unless they have violated a constitutional
right that was already clearly established at the time of the conduct.39
Consequently, no new law has been established with regard to
violations of an innocent person’s Fourth Amendment rights.
Instead, the Court develops the Fourth Amendment exclusively in
the context of cases in which criminal evidence is discovered. The
vast majority of stops, and 97.5% were reported to have not uncovered incriminating
evidence. AM. CIVIL LIBERTIES UNION, BLACK, BROWN AND TARGETED 12 (2014),
https://aclum.org/wp-content/uploads/2015/06/reports-black-brown-and-targeted.pdf
[hereinafter BLACK, BROWN AND TARGETED]. In Los Angeles, from July 2003 to June 2004,
blacks were stopped at a rate 3,400 times higher than whites, but frisked blacks were
42.3% less likely to be found with a weapon than frisked whites, and blacks were 21.0%
more likely than whites to be stopped without being either cited or arrested. IAN AYRES &
JONATHAN BOROWSKY, AM. CIVIL LIBERTIES UNION OF S. CAL., A STUDY OF RACIALLY
DISPARATE OUTCOMES IN THE LOS ANGELES POLICE DEPARTMENT i, 7 (2008),
https://www.aclusocal.org/sites/default/files/wp-content/uploads/2015/09/11837125LAPD-Racial-Profiling-Report-ACLU.pdf.
37 See Terry v. Ohio, 392 U.S. 1, 30 (1968) (permitting limited stops where police
have reasonable suspicion of criminality).
38 E.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (“[A]ll evidence obtained by
searches and seizures in violation of the Constitution is . . . inadmissible in a state
court.”).
39 Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014).

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Supreme Court has repeatedly asserted, but never established, the
empirical assumption that the most effective deterrent against
unlawful police conduct is the suppression of incriminating
evidence.40 While in recent years the Court has repeatedly called into
question the desirability of the exclusionary rule and limited its
applicability in an expanding list of situations,41 it has not accordingly
developed alternative remedies for Fourth Amendment violations.
Exclusion provides no comfort to the vast majority of people who
are detained despite actual innocence. The number of cases in which
there is no real remedy for a Fourth Amendment violation is only
increasing, as the practice of stopping and frisking has broadened with
the sustained popularity of the “broken windows” theory of policing.42
The Court itself has recognized that the exclusionary rule cannot deter
such methods of policing, which deemphasize the detection and arrest
of perpetrators in favor of maintaining order through constant policecivilian interactions.43 The Court has left police departments around
the country free to stop and frisk thousands of people with little
regard for their extremely low rate of success, and so the vast majority
of potentially unlawful stops are practically beyond remediation.

40 See Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87 NOTRE
DAME L. REV. 585, 595 (2011) (describing how the Supreme Court has acknowledged
that the impact of the exclusionary rule is unknown, and further showing why this
assumption is often incorrect).
41 See, e.g., Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (“Suppression of
evidence . . . has always been our last resort, not our first impulse.”); Davis v. United
States, 564 U.S. 229, 236 (2011) (describing the exclusionary rule as a mere
“prudential” doctrine); Herring v. United States, 555 U.S. 135, 140 (2009) (“[O]ur
precedents establish important principles that constrain application of the
exclusionary rule.”); Hudson v. Michigan, 547 U.S. 586, 591 (2006) (“Suppression of
evidence, however, has always been our last resort, not our first impulse.”); United
States v. Leon, 468 U.S. 897, 907 (1984) (describing the “substantial social costs
exacted by the exclusionary rule”).
42 See Renee Klahr et al., How a Theory of Crime and Policing Was Born, and Went
Terribly Wrong, NPR (Nov. 1, 2016, 12:00 AM), http://www.npr.org/2016/11/01/
500104506/broken-windows-policing-and-the-origins-of-stop-and-frisk-and-how-it-wentwrong; infra Subpart I.C; see also George L. Kelling & James Q. Wilson, Broken Windows:
The Police and Neighborhood Safety, ATLANTIC (Mar. 1982), https://www.theatlantic.com/
magazine/archive/1982/03/broken-windows/304465/?single_page=true.
43 See Kelling & Wilson, supra note 42; Klahr et al., supra note 42; see also Terry
v. Ohio, 392 U.S. 1, 13-14 (1968) (acknowledging that the exclusionary rule does
nothing to discourage searches undertaken for non-prosecution purposes, such as
creating an aggressive police presence in order to deter crime).

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A. Terry Stops and the Problem of Racialized Policing
At approximately 9:40 pm on December 18, 2011, Jimmy Warren, a
young black man, was walking near a park in Boston when Officer
Luis Anjos was driving nearby in a marked car.44 Twenty-five minutes
earlier, Anjos had responded to a call of a robbery, and the victim had
told him that he had seen a black male wearing a red hoodie jump out
of his bedroom window. The victim then saw two other black males
outside, one wearing dark clothing, before noticing that his backpack,
a computer, and five baseball hats were missing from his room.45
When Anjos later spotted Warren and another black male, both
wearing dark clothing, neither was carrying a backpack. But Anjos had
a “hunch” that these two men might have been involved in the
breaking and entering, so he rolled down the window of his cruiser
and yelled, “Hey guys, wait a minute.”46 Warren and his companion
made eye contact with Anjos, turned around, and “jogged” down a
path into the park away from Anjos.47 Anjos radioed dispatch and
Officer Carr soon arrived; Officer Carr addressed the men, at which
point Warren turned and ran. Carr followed him and quickly drew his
firearm, commanding Warren to “get down.”48 After a brief struggle,
Carr arrested and searched Warren but found no contraband on his
person. Police recovered a .22 caliber firearm nearby. Warren did not
have a license to carry a firearm and was charged with unlawful
possession.49 Before trial, Warren moved to suppress the gun, arguing
that the officers’ attempt to detain him violated his Fourth
Amendment right to be free of unreasonable searches and seizures.50
The Trial Court denied the motion.51
The procedural posture of Warren’s case is representative of most
Fourth Amendment Terry cases, but the Supreme Judicial Court of
Massachusetts handed down a groundbreaking decision. While
conceding that evasive conduct is a relevant factor when analyzing
reasonable suspicion, it stated that in the absence of any other
information leading to an individualized suspicion, evasive conduct is
insufficient to support reasonable suspicion. This was because the

44
45
46
47
48
49
50
51

Commonwealth v. Warren, 58 N.E.3d 333, 336 (Mass. 2016).
Id.
Id. at 337.
Id.
Id.
Id. at 337-38.
Id. at 338.
Id. at 336.

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analysis of a black man’s apparent flight from police could not be
divorced from the findings of a Boston Police Department report
documenting a pattern of racial profiling of black males in the city.52
The court reasoned that the presumption that consciousness of guilt is
the only motivating factor for evasiveness is belied by the fact that
black males are “repeatedly targeted.”53 Black males suffer “the
recurring indignity” of being racially profiled and so are just as likely
to be motivated by the desire to avoid that indignity as to evade
detection of criminal conduct.54 The reasoning of the Warren decision
is supported by the fact that most stops in Boston do not result in the
discovery of criminal conduct.
The court’s interpretation of the significance of Warren’s evasive
conduct was a bold response to the breakdown in police-minority
relations. Yet even the Warren case, which resulted in the suppression
of the gun police discovered, did not address the heart of the problem.
The holding was designed to deter police officers from initiating stops
on young black males on the grounds of evasive conduct alone. But in
the overwhelming majority of law-enforcement stops, no evidence is
uncovered that a victim of an unconstitutional stop could seek to
suppress. Many Terry stops involve constitutionally dubious police
conduct, but in nearly every case these stops will never be challenged
by way of a plaintiff’s civil claim that his or her Fourth Amendment
rights were violated.55
The Boston study on which the Massachusetts court relied
demonstrates patterns of police-citizen interactions similar to those
conducted in other major cities, including New York, Chicago, and
Los Angeles. These studies show that black males and other racial
minorities are disproportionately targeted for police-civilian
interactions.56 From 2003 to 2004 in Los Angeles, for instance, blacks
52

See id. at 341-42.
Id. at 342.
54 Id.
55 As discussed infra, many scholars consider civil litigation an impractical
mechanism for the vindication of Fourth Amendment rights in large part due to the
inadequacy of remedies and the doctrines of sovereign and qualified immunity. See,
e.g., Orin S. Kerr, Fourth Amendment Remedies and Development of the Law: A Comment
on Camreta v. Greene and Davis v. United States, 2011 CATO SUP. CT. REV. 237, 242-43
(2011); L. Timothy Perrin et al., If It’s Broken, Fix It: Moving Beyond the Exclusionary
Rule: A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil
Administrative Remedy to Partially Replace the Rule, 83 IOWA L. REV. 669, 710, 737
(1998); Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as
Constitutional Theory, 77 GEO. L.J. 19, 83 (1988).
56 AM. CIVIL LIBERTIES UNION, BLACK, BROWN AND TARGETED, supra note 36, at 12-13;
53

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were stopped at a rate 3,400 times higher than whites.57 In addition to
showing a disparate impact on racial minorities, these studies suggest
that the vast majority of stops do not lead to the discovery of
incriminating evidence. In the Boston study, police reported that an
item or object was seized in only 2.5% of stops.58 In the New York City
study, only 2% of frisks revealed evidence of a weapon, even though
police frisked suspects 50% of the time.59 In Chicago in the summer of
2014, more than 250,000 people were subjected to stops that did not
lead to an arrest.60
There is also evidence that the majority of stops, especially those of
racial minorities, rest on inchoate and subjective descriptions of
potentially innocent behavior in poor and minority neighborhoods.61
When determinations of apparently criminal behavior are almost
entirely subjective, implicit racial bias is likely to influence decision
making.62 In the New York study, the most cited reason for a stop was
“furtive movements,” which justified nearly 50% of all stops.63 In its
review of a random sample of Chicago Police Department explanations
for stops, the ACLU of Illinois found that half of the stops were not
supported by reasonable suspicion.64 While a disproportionate number
of those stopped were minorities,65 stops of minorities were
significantly less likely than stops of whites to turn up evidence of
crime.66 Young black and Latino males made up only 4.7% of New
York City’s population, yet they accounted for 40.5% of people
stopped in the city from 2003 to 2013.67 Yet, of those minorities

AM. CIVIL LIBERTIES UNION OF ILL., STOP AND FRISK IN CHICAGO 3 (2015), https://www.
aclu-il.org/sites/default/files/wp-content/uploads/2015/03/ACLU_StopandFrisk_6.pdf
[hereinafter STOP AND FRISK IN CHICAGO]; AYRES & BOROWSKY, supra note 36, at 5-6; DUNN,
supra note 33, at 14.
57 AYRES & BOROWSKY, supra note 36, at i.
58 AM. CIVIL LIBERTIES UNION, BLACK, BROWN AND TARGETED, supra note 36, at 12.
59 DUNN, supra note 33, at 1.
60 AM. CIVIL LIBERTIES UNION OF ILL., STOP AND FRISK IN CHICAGO, supra note 56, at 3.
61 See DUNN, supra note 33, at 3-4.
62 See, e.g., Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in
Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CALIF. L.
REV. 997, 1030-31 (2006).
63 DUNN, supra note 33, at 3.
64 AM. CIVIL LIBERTIES UNION OF ILL., STOP AND FRISK IN CHICAGO, supra note 56, at 7.
65 AM. CIVIL LIBERTIES UNION, BLACK, BROWN AND TARGETED, supra note 36, at 4;
AM. CIVIL LIBERTIES UNION OF ILL., STOP AND FRISK IN CHICAGO, supra note 56, at 9;
DUNN, supra note 33, at 6.
66 AYRES & BOROWSKY, supra note 36, at 7-8.
67 DUNN, supra note 33, at 6.

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stopped, 89.7% held no contraband.68 While blacks and Latinos in
New York City were frisked at a higher rate than whites, frisked whites
were nearly twice as likely to be found with a weapon.69 In Los
Angeles, stops of blacks and Latinos “were systematically less
productive than stops of whites.”70 Blacks were 42% less likely than
frisked whites to be found with weapons, 25% less likely to be found
with drugs, and 33% less likely to be found with other contraband.71
“Hit-rate data” in Minnesota, Illinois, Rhode Island, Missouri, and
West Virginia suggest that this pattern occurs nationwide.72
These figures present compelling evidence that the overwhelming
majority of Terry stops are constitutionally questionable and typically
unsuccessful, leading to the discovery of no incriminating evidence.
Yet, courts almost exclusively consider the legality of stops in cases
where contraband is discovered. The Supreme Court develops
doctrine by considering an unrepresentative sample of cases and
solving for a problem that occurs in a minor fraction of police-citizen
encounters.
B. The Doctrine of Reasonable Suspicion in the Roberts Court
Instead of curbing the power of police to systematically stop citizens
without evidence of criminality, the Supreme Court has further
liberalized the reasonable-suspicion standard. This is despite the
inability of scholarly research to determine whether stop-and-frisk
programs reduce crime or increase the amount of contraband seized.73
Simultaneously, the Court has refused to develop any jurisprudence
unique to innocent victims of unconstitutional police conduct. Rather,
by tethering remedies for the innocent to the steadily eroding
protections for the apparently guilty, the Court has made it even more

68

See id.
See id. at 9.
70 AYRES & BOROWSKY, supra note 36, at 7.
71 Id. at 8.
72 L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 MINN. L.
REV. 2035, 2037-38 (2011).
73 Compare Richard Rosenfeld & Robert Fornango, The Impact of Police Stops on
Precinct Robbery and Burglary Rates in New York City, 2003–2010, 31 JUST. Q. 96, 116
(2014) (showing no significant effect), with Franklin E. Zimring, How New York Beat
Crime, 305 SCI. AM. 74, 79 (2011) (showing a potentially large effect). For a moderate
view, see David Weisburd et al., Do Stop, Question, and Frisk Practices Deter Crime?, 15
CRIMINOLOGY & PUB. POL’Y 31, 47 (2015) (finding a small effect once methodological
errors in most studies are corrected).
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difficult for innocent victims of unconstitutional police conduct to
vindicate their Fourth Amendment rights.
In Illinois v. Wardlow, the Court held that a person’s apparent flight
from police in a high-crime neighborhood, without more, met the
requirements for a finding of reasonable suspicion.74 The Court was
aware of the facts that made the Massachusetts court in Warren
consider such a finding unsafe: the dissenting justices in Wardlow
pointed out that there are “undeniably instances in which a person
runs for entirely innocent reasons.”75 In fact, arguably there are more
reasons for a person to run from police in a high crime neighborhood
than in a low crime neighborhood, including being more likely to have
had prior bad experiences with police, looking suspicious in failing to
run if everybody else runs, a high probability of a subsequent battle
occurring between actual criminals and police, and the possibility that
officers are more likely to be aggressive out of fear or expectation of
trouble. The same logic was available to the justices in Wardlow as in
Warren, but the Supreme Court was unwilling to recognize or address
the problem of police incentives to stop individuals, absent
wrongdoing.
Wardlow is representative of the Court’s apparent indifference to
this problem, as manifested in two main lines of doctrine. First, the
Court has continued to expand the scope of reasonable suspicion.
Simultaneously, the Court has continued to qualify the exclusionary
rule, lengthening the list of constitutional violations to which the
Court will refuse to apply it.76 While the Court finds fewer violations
of the reasonable-suspicion standard, it also regularly finds
constitutional violations that it is nevertheless unwilling to remedy.77
These two developments are intrinsically intertwined.
In each of the three most recent Terry stop cases considered by the
Roberts Court, incriminating evidence was found following
constitutionally dubious police conduct.78 In each case, the Court held
74

See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000).
Id. at 129 (Stevens, J., dissenting).
76 See, e.g., Herring v. United States, 555 U.S. 135, 137 (2009) (holding that the
exclusionary rule does not apply to situations of “isolated negligence attenuated from
the arrest”).
77 See, e.g., Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016) (allowing admission of
evidence obtained after an unlawful stop); Herring, 555 U.S. at 137-39 (allowing
admission of evidence obtained incident to an officer’s mistaken belief of an arrest
warrant); Hudson v. Michigan, 547 U.S. 586, 603 (2006) (allowing admission of
evidence obtained in violation of the knock-and-announce rule).
78 See Strieff, 136 S. Ct. at 2059; Heien v. North Carolina, 135 S. Ct. 530, 534
(2014); Navarette v. California, 134 S. Ct. 1683, 1686-87 (2014).
75

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the challenged evidence admissible despite questionable or even
concededly unlawful police conduct.79 When considered together,
these three cases significantly expand the range of effectively
permissible police conduct under the doctrine of reasonable suspicion
and limit the set of circumstances where any remedy is available.
Most recently, in Utah v. Strieff, the Court excused a Terry violation
that was concededly unlawful.80 Narcotics detective Douglas Fackrell
was surveilling a house after receiving an anonymous tip that narcotics
were being sold from the residence.81 After observing Edward Strieff
exit the house, Fackrell detained him. During the stop, Fackrell
relayed Strieff’s identification information to a police dispatcher and
discovered that Strieff had an outstanding arrest warrant for a traffic
violation.82 Fackrell then arrested Strieff and, incident to that arrest,
searched him and uncovered small amounts of methamphetamine and
drug paraphernalia.83
The Supreme Court found that the stop was unlawful, but the
discovery of contraband was sufficiently attenuated to be admissible,
even though the search that uncovered it was an automatic result of
standard police procedure.84 Justice Thomas, writing for the majority,
recounted how the exclusionary rule had become the principal judicial
remedy to deter Fourth Amendment violations in the twentieth
century.85 Justice Thomas stated that suppression of evidence was a
last resort, not a first impulse, and harkened back to the days when
officers could be subjected to tort suits from victims of Fourth
Amendment violations.86 But Justice Thomas did not examine the
current state of the law of civil remedies, which is increasingly limited
by the doctrines of qualified and sovereign immunity and the lack of
availability of damages.87
Justice Sotomayor in dissent argued that since outstanding warrants
are very common, the Court was wrong to consider the police
misbehavior “isolated” and unlikely to recur: since tens of thousands
of stops are made by police without cause and it is routine practice to
79 See Strieff, 136 S. Ct. at 2059; Heien, 135 S. Ct. at 534; Navarette, 134 S. Ct. at
1686-87.
80 See Strieff, 136 S. Ct. at 2059-60.
81 Id. at 2059.
82 Id. at 2060.
83 Id.
84 Id. at 2063.
85 Id. at 2061.
86 Id.
87 See Kerr, supra note 55, at 242-43.

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check for outstanding warrants in such circumstances, it is unsafe to
assume that such conduct will remain isolated.88 Nevertheless, Justice
Sotomayor embraced the deterrence rationale at the heart of the
exclusionary rule.89 But the “astounding” numbers that Justice
Sotomayor cited of police stopping people without suspicion in order
to check for a warrant90 are but a small percentage of those stopped by
police without suspicion for non-prosecutorial purposes, be it
harassment or “aggressive policing,” which are not deterred by the
exclusionary rule.91 As such, even the dissent misses the bigger
picture: both sides focus on the issue of police stops of those found
with incriminating evidence, and neither considers how to protect the
majority of actually innocent individuals stopped.
In 2014, in Heien v. North Carolina, the Court demonstrated its
willingness to excuse unlawful police conduct so long as that conduct
flows from a police officer’s “reasonable” mistake of law.92 Sergeant
Matt Darisse observed a vehicle whose driver looked “very stiff and
nervous” pass by his stationary patrol car, so Darisse followed the
car.93 After several miles, Darisse saw the car brake but only the left
brake light came on.94 Darisse initiated a traffic stop and obtained
consent to search the car, which uncovered a sandwich bag containing
cocaine.95 In fact, driving with only one working brake light was not a
violation of North Carolina law;96 nevertheless, the Supreme Court
concluded that Darisse’s apparent mistake of law was not
unreasonable, and so there was reasonable suspicion justifying the
stop, making the discovered evidence admissible.97
88

See Strieff, 136 S. Ct. at 2068-69 (Sotomayor, J., dissenting).
Id. at 2065 (“This ‘exclusionary rule’ removes an incentive for officers to search
us without proper justification.”).
90 Id. at 2068.
91 See Myron W. Orfield, Jr., The Exclusionary Rule and Deterrence: An Empirical
Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016, 1041 (1987) (conducting a
study of police officers, some of whom explicitly stated that some illegal searches were
conducted to get weapons or drugs “off the street”); George C. Thomas III & Barry S.
Pollack, Balancing the Fourth Amendment Scales: The Bad-Faith “Exception” to
Exclusionary Rule Limitations, 45 HASTINGS L.J. 21, 58 (1993) (observing that police
officers “have plenty of other incentives to violate the Fourth Amendment, such as
preventing a suspect from fleeing, confiscating contraband, and making certain that
no one in the vicinity is armed”).
92 Heien v. North Carolina, 135 S. Ct. 530, 540 (2014).
93 Id. at 534.
94 Id.
95 Id.
96 Id. at 535.
97 Id. at 540.
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The result of Heien is that even when a citizen is behaving lawfully,
the police may mistakenly believe themselves to have reasonable
suspicion, thus subjecting citizens to an even wider array of stops. But
as Justice Sotomayor pointed out in her dissent, the majority failed to
clarify what test of reasonableness applied in this context, and she
predicted that its appropriate application “will prove murky” in
subsequent cases.98 As such, not only can officers be reasonably
mistaken about the law, but officers could be reasonably confused
about when their mistakes of law are reasonable, creating an incentive
that when in doubt, they should stop the persons they have
unspecified hunches about.
In Navarette v. California, the Court lowered the quantum of
evidence necessary to constitute reasonable suspicion that can justify
an investigatory stop.99 Police received a 911 call reporting a truck that
had allegedly run the caller off the road.100 After the tip was relayed to
highway patrol officers, an officer saw the truck matching the
description and initiated a stop.101 The officer did not personally
observe any reckless driving that would have confirmed the caller’s
accusation before initiating the stop.102 After making the stop, law
enforcement smelled marijuana and searched the truck, uncovering
thirty pounds of marijuana.103
Contrary to prior precedent,104 the Court held that an unconfirmed
tip describing criminal behavior from an eyewitness was sufficient to
justify a finding of reasonable suspicion.105 The Court differentiated
the case, reasoning that the information relayed in the 911 call was
sufficiently reliable to support a finding of reasonable suspicion
because by reporting that she had been run off the road, the caller was
claiming eyewitness knowledge.106 It also argued that because, now or
in the future, 911 systems may have some limited tracking capacity of
at least the geographic location of a caller, the use of the 911
emergency system meant that an anonymous call is not necessarily

98

Id. at 547 (Sotomayor, J., dissenting).
Navarette v. California, 134 S. Ct. 1683, 1692 (2014).
100 Id. at 1686-87.
101 Id. at 1687.
102 See id.
103 Id.
104 E.g., Alabama v. White, 496 U.S. 325, 329 (1990) (“[A]n anonymous tip alone
seldom demonstrates the informant’s basis of knowledge or veracity . . . .”).
105 See Navarette, 134 S. Ct. at 1687.
106 Id. at 1689.
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truly anonymous.107 Justice Scalia in dissent systematically dismantled
these and other technical distinctions,108 and criticized the majority
opinion as a “freedom-destroying cocktail,” in part because
anonymous tipsters can now “lie with impunity.”109 Nonetheless the
evidence was admitted. As a result, police can rely not only on their
own borderline or even incorrect assessments of suspicion, but also on
the unsubstantiated suspicions of other citizens, at least for Terry
stops in the vehicle context.
The holdings of Strieff, Heien, and Navarette, taken together, signify
an overarching liberalization of the law governing police conduct in
the administration of Terry stops. After Strieff, an element of standard
police procedure, such as conducting a record check, may in and of
itself create an attenuating circumstance that excuses law-enforcement
violations. Logically, allowing the police to nullify their own violations
in this way by following standard procedure will encourage police to
conduct yet more constitutionally dubious stops. After Heien, courts
may excuse a police officer for subjecting a person to a stop despite
the fact that the officer did not have reasonable articulable suspicion
that an actual crime was being committed, so long as the officer’s
misapprehension of the law was not “unreasonable.” And after
Navarette, police officers need not personally confirm any of the
details in an anonymous tip that would give rise to reasonable
suspicion before subjecting a person to a temporary detention. All
three of these cases justified the admission of incriminating evidence
against a defendant who had in fact violated the criminal law, but their
holdings weaken protections for the innocent as well. As the next
section shows, the larger problem for the augmentation of police
incentives to stop citizens is less at the margins of reasonable
suspicion as it is in the myopic insistence on exclusion as the only
remedy for violation during a Terry stop, when in most Terry stops
there is no evidence to exclude.
C. The Exclusionary Rule and the Rights of the Innocent
Civil damages suits brought by innocent victims of constitutional
violations have played only a very modest role in the development of
Fourth Amendment law. The robust protections for defendants
107

See id. at 1690.
Tonja Jacobi, The Future of Terry in the Car Context, 15 OHIO ST. J. CRIM. L. 89,
90, 97 (2017) (arguing that the dissent won the argument on technical terms but lost
the debate for practical reasons).
109 Navarette, 134 S. Ct. at 1693, 1697 (Scalia, J., dissenting).
108

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resulting from the doctrines of qualified and sovereign immunity and
the lack of availability of civil damages contribute to this
phenomenon.110 Under the qualified immunity doctrine, police may be
excused from concededly unlawful Fourth Amendment violations, so
long as the rights violated are not “clearly established” by prior
Supreme Court law.111 Furthermore, civil claimants are charged with
proving damages, such as economic loss or physical and emotional
distress,112 which, while undeniably present in wrongful stops,113 are
unlikely to be substantial enough to justify the time and effort
required to prepare and litigate a lawsuit.114 Consequently, the
Supreme Court has developed stop-and-frisk doctrine primarily when
police engage in constitutionally questionable conduct that leads to
the discovery of evidence — a wholly unrepresentative sample of
cases. By focusing on the exceptional cases in which incriminating
evidence is discovered, the Court has failed to develop doctrinal
remedies that are protective of the Fourth Amendment rights of the
innocent. While the exclusionary rule in theory provides a deterrent
effect that benefits the innocent as well as the guilty, in reality police
violations are effectively nullified by prosecutors refraining from
bringing charges,115 a benefit only for the guilty, not the innocent.
From the 1960s through the 1980s, the Supreme Court insisted that
exclusion operated as an automatic fix for any constitutional

110 See Denise Gilman, Calling the United States’ Bluff: How Sovereign Immunity
Undermines the United States’ Claim to an Effective Domestic Human Rights System, 95
GEO. L.J. 591, 593 (2007) (“One of the most serious impediments to the enforcement
of human rights in the United States is the broad application of sovereign immunity to
prevent liability or even suit against federal, state, and local governments and their
officials.”); Kerr, supra note 55, at 242-43; James E. Pfander, Resolving the Qualified
Immunity Dilemma: Constitutional Tort Claims for Nominal Damages, 111 COLUM. L.
REV. 1601, 1601 (2011) (explaining the range of limitations on civil-rights litigants
imposed by qualified immunity).
111 See Wilson v. Layne, 526 U.S. 603, 614 (1999) (noting that government officials
are “shielded from civil liability insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known”).
112 See Carey v. Piphus, 435 U.S. 247, 262-64 (1978).
113 See generally MATT TAIBBI, THE DIVIDE: AMERICAN INJUSTICE IN THE AGE OF THE
WEALTH GAP 53-82 (2014) (describing black men attesting to being stopped and
harassed on a daily basis).
114 See Kerr, supra note 55, at 242.
115 This is true also for Fifth Amendment violations. See Chavez v. Martinez, 538
U.S. 760, 766 (2003) (holding that even physical assaults undertaken by the police in
order to compel a confession from a suspect do not constitute compulsion to be a
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violation,116 regardless of the probative value of the evidence or the
cost in terms of lost prosecutions,117 and applied it to all
jurisdictions.118 Initially, the rule was justified in part as an expressive
commitment to judicial integrity, as unlawful seizures should “find no
sanction” in the courts,119 but it is now exclusively justified by an
empirically questionable claim that it increases deterrence of police
violations.120 The theory is that excluding evidence in a current case
will impose costs on the police that will deter them from committing
violations in future cases, and the Court claims that no other response
by the Court would have such deterrent effect.121
There are two main problems with this approach. First, for the
innocent, not being charged with a crime that one did not commit is
hardly a remedy. The Court provides a remedy only for defendants
when incriminating evidence was actually found against them and
simply assumes this will provide secondary protection to those against
whom police conduct illegal searches but find no evidence, via a
“jurisprudential trickle-down effect of protection.”122 But if police are
otherwise motivated to commit unlawful searches, and there is no
consequence for committing unlawful searches against those who are
not ultimately prosecuted, then the rule will not deter the vast
majority of violations. Second, many scholars argue that the
exclusionary rule is an overly costly response to sometimes minor
constitutional infringements.123
116 But see Aldermen v. United States, 394 U.S. 165, 172 (1969) (refusing to apply
exclusion to those lacking standing).
117 See Weeks v. United States, 232 U.S. 383, 392 (1914).
118 See Mapp v. Ohio, 367 U.S. 643, 660 (1961) (“Having once recognized that the
right to privacy embodied in the Fourth Amendment is enforceable against the
States . . . we can no longer permit that right to remain an empty promise.”).
119 Id. at 648; see also Olmstead v. United States, 277 U.S. 438, 485 (1928)
(Brandeis, J., dissenting) (“If the Government becomes a lawbreaker, it breeds
contempt for law.”).
120 See United States v. Leon, 468 U.S. 897, 921 n.22 (1984) (stating that the
previously relied upon rationale of judicial integrity is actually subsumed within the
deterrence rationale).
121 Mapp, 367 U.S. at 655-56 (explaining that without the exclusionary rule,
Fourth Amendment rights would be valueless words, with no incentive not to
disregard them).
122 Jacobi, supra note 40, at 588.
123 Compare Raymond A. Atkins & Paul H. Rubin, Effects of Criminal Procedure on
Crime Rates: Mapping out the Consequences of the Exclusionary Rule, 46 J.L. & ECON.
157, 174 (2003) (finding that crime rates went up substantially after Mapp and thus
that the exclusionary rule imposes massive costs), with Bradley C. Canon, Is the
Exclusionary Rule in Failing Health? Some New Data and a Plea Against a Precipitous

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The first problem is supported by the data described above, showing
that tens of thousands of unconstitutional stops of innocent people
continue to occur in numerous cities around the country.124 The
second problem is one of opinion, depending on the relative value of
admitting evidence in the face of police wrongdoing. It is a question
on which the empirical evidence is, by the Court’s own admission,
hopelessly and insolubly unclear.125 Nevertheless, the Rehnquist and
Roberts Courts have focused on the second problem, to the exclusion
of the first problem.
Dissatisfied with broad application of the exclusionary rule, the
Rehnquist and Roberts Courts gradually narrowed its application
through a number of exceptions, including exempting knock-andannounce violations,126 creating a good-faith exception for court
administrators,127 and extending that exception to police officers in
certain circumstances.128 Beginning in Leon, the Court introduced a
general principle that the exclusionary rule should apply only where
constitutional violations are “substantial and deliberate” and only
when exclusion would result in “appreciable deterrence.”129 In Leon,
the Rehnquist Court described the exclusionary rule as an “extreme
sanction,” and opined that the rule should not apply when the social
costs of allowing the guilty to go free outweigh the importance of
deterring a particular constitutional violation.130 The Roberts Court
Conclusion, 62 KY. L.J. 681, 695, 704-05 (1974) (showing a significant number of lost
arrests in some cities following the introduction of the exclusionary rule, but
determining that evidence of the exclusionary rule’s failure is too inconclusive to
abandon it).
124 See supra notes 56–72 and accompanying text.
125 E.g., Illinois v. Gates, 462 U.S. 213, 257 (1983) (White, J., concurring) (“We
will never know how many guilty defendants go free as a result of the rule’s
operation.”); United States v. Janis, 428 U.S. 433, 452 n.22 (1976) (“No empirical
researcher, proponent or opponent of the rule, has yet been able to establish with any
assurance whether the rule has a deterrent effect . . . .”); Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 416 (1971) (Burger, C.J.,
dissenting) (“[T]here is no empirical evidence to support the claim that the
[exclusionary] rule actually deters illegal conduct of law enforcement officials.”).
126 See, e.g., Hudson v. Michigan, 547 U.S. 586, 599 (2006) (finding that the “social
costs of applying the exclusionary rule to knock-and-announce violations” made its
application in appropriate).
127 See United States v. Leon, 468 U.S. 897, 920-21 (1984) (finding that “when an
officer acting with objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope . . . there is no police illegality and thus nothing
to deter”).
128 See Herring v. United States, 555 U.S. 135, 141-44 (2009).
129 Leon, 468 U.S. at 909.
130 See id. at 909, 916.

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went beyond merely creating a list of exceptions to the rule by
developing an alternative standard for its application.131 In Herring,
the Court rested exclusion on a showing of whether its value in
deterring police from a constitutional violation outweighs the social
costs to the justice system, in terms of lost arrests, inefficient
prosecutions, and lost convictions.132
The modern Court’s qualified approach to the exclusionary rule is at
odds with its early jurisprudence. In Mapp, by requiring exclusion as
the remedy to all unconstitutional searches and seizures,133 the Court
acknowledged that the cost of exclusion may be, in some cases, to set
the guilty free.134 The Court’s aim was to impose deliberately severe
costs on society, so as to create deterrence against police violations.
The Herring approach is therefore incoherent: the costs imposed by
the exclusionary rule are, in theory, the very means by which the
police are deterred. But the central problem with the Roberts Court
approach is not its inconsistence with precedent or its logical
weaknesses, but rather what it fails to address.
Although the Court has limited the applicability of the exclusionary
rule in various situations, in none of these cases has it provided an
alternative remedy for innocent people whose Fourth Amendment
rights are violated. Nor has it acknowledged that limiting exclusion as
a remedy interacts with its qualified immunity jurisprudence to leave
numerous violations practically without remedy. The exclusionaryrule debate has continued between the liberal and conservative
justices, as well as between scholars acting as advocates for either side,
but it has overwhelmingly explored the tension between deterring
future misconduct and truth in criminal justice.135 As such, the debate
largely ignores the key constitutional problem of the innocent person
131 See Frank Cross, Tonja Jacobi & Emerson H. Tiller, A Positive Political Theory of
Rules and Standards, 2012 U. ILL. L. REV. 1, 31 (arguing that the Roberts Court
established an “exclusionary standard”).
132 See Herring, 555 U.S. at 147-48 (noting that “any marginal deterrence” of
excluding an error made in good faith must “pay its way” (quoting Leon, 468 U.S. at
907 n.6)).
133 Mapp v. Ohio, 367 U.S. 643, 655 (1961) (“We hold that all evidence obtained
by searches and seizures in violation of the Constitution is, by that same authority,
inadmissible in a state court.”).
134 Id. at 659 (acknowledging that the effect of the exclusionary rule is that “the
criminal is to go free because the constable has blundered. In some cases this will
undoubtedly be the result. But . . . [t]he criminal goes free, if he must, but it is the law
that sets him free”).
135 See David A. Harris, How Accountability-Based Policing Can Reinforce — or
Replace — the Fourth Amendment Exclusionary Rule, 7 OHIO ST. J. CRIM. L. 149, 162-64
(2009) (summarizing both sides of the debate).

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who is subjected to a Fourth Amendment violation without any
remedy.
Despite its more defendant-friendly bent, the Warren Court was
equally neglectful of the plight of innocent citizens. The Mapp Court
based the exclusionary rule on the assumption that exclusion of
unlawfully obtained evidence would deter police officers from acting
in violation of the Constitution. This claim has been shown to be
flawed in many respects. First, studies have shown that police
frequently do not know the constitutional rules that they are meant to
apply,136 or the consequences of their breach,137 making deterrence
difficult. Second, those consequences are only tangentially related to
police incentives, since police performance is measured in terms of
arrests, not convictions.138 Third, police may have an incentive to stop
and search even when evidence will be inadmissible, either to baldly
harass certain people or to protect the community through “aggressive
policing.” Fourth, illegally garnered evidence can nonetheless be used
to prosecute third parties who lack standing, to impeach a defendant’s
credibility, to try non-criminal cases, to induce a subject to become a
police informant, or to find other evidence.139
On a more general level, the exclusionary rule often fails to deter
police conduct because police may simply substitute abidance with
Fourth Amendment law with perjury in the courtroom or aggressive
policing tactics that are designed to avoid bringing cases to court.
When police officers see the law as a hindrance to their primary task
of apprehending criminals, they usually attempt to construct the
appearance of compliance, rather than allow offenders to go free.140 A
136 See William C. Heffernan & Richard W. Lovely, Evaluating the Fourth
Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U.
MICH. J.L. REFORM 311, 333 (1991) (showing that police perform only slightly better
than chance in assessing the lawfulness of search scenarios).
137 See Perrin et al., supra note 55, at 723-24 (finding that fewer than 30% of
officers were ever formally informed by the prosecutor or from their supervisor of an
evidentiary exclusion).
138 Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in
Criminal Cases, 45 N.Y.U. L. REV. 785, 793 (1970) (finding that police departments
“almost invariably measure their own efficiency in terms of ‘clearances by arrest,’ not
by conviction”).
139 See Walder v. United States, 347 U.S. 62, 66 (1954) (“[T]here is hardly
justification for letting the defendant affirmatively resort to perjurious testimony in
reliance on the Government’s disability to challenge his credibility.”); Dallin H. Oaks,
Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665, 720-22,
732 n.197, 734-35 (1970); David H. Taylor, Should It Take a Thief?: Rethinking the
Admission of Illegally Obtained Evidence in Civil Cases, 22 REV. LITIG. 625, 626 (2003).
140 See, e.g., JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL 215-19 (1966) (discussing

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study of narcotics arrests found that in the wake of Mapp, arrests in
which drugs were found on the person decreased, while at the same
time arrests for drugs that police claimed to have found in hand or
dropped to the ground rose significantly.141 The study’s authors
concluded this result could only be explained through police perjury,
because there was no other reason why such a sudden increase in
drugs arrests that do not require a search had occurred.142 Police
perjury is acknowledged as an inevitable reality by prosecutors,
defenders, and judges alike.143
An equally significant impediment lies in the reality that bringing
cases to prosecution is only one part of police strategy. The primary
objective of policing is not simply the eventual conviction of
criminals, but the suppression of crime.144 Police often act in order to
“make police presence felt” by generating a perception of police
activity.145 Actually obtaining convictions is a “secondary goal often
conflicting with [policing’s] primary objectives.”146 Consequently,
when police, conscious of the exclusionary rule, shift their focus to
patrols and confiscations, rather than apprehensions that might lead to
unsuccessful prosecutions, the exclusionary rule may actually
encourage illegal police activity.147 This became a formal policing
strategy in the decades following Mapp, as stop-and-frisk programs are
largely based on the principles of aggressive policing. For instance,
New York implemented “broken windows” policing to respond to the
“public’s fear of crime” by addressing “perceptions of disorder,” rather
than serious criminal conduct.148
In Terry, the Warren Court acknowledged that the exclusionary rule
“is powerless to deter invasions of constitutionally guaranteed rights
where the police either have no interest in prosecuting or are willing
to forgo successful prosecution in the interest of serving some other
police perceptions of the exclusionary rule).
141 Effect of Mapp v. Ohio on Police Search-and-Seizure Practices in Narcotics Cases,
4 COLUM. J.L. & SOC. PROBS. 87, 95 (1968).
142 Id. at 95-96.
143 See Myron W. Orfield, Jr., Deterrence, Perjury and the Heater Factor: An
Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 95-99
(1992).
144 See id. at 86.
145 Id.
146 Id.
147 Jacobi, supra note 40, at 610.
148 Udi Ofer, Criminalizing the Classroom: The Rise of Aggressive Policing and Zero
Tolerance Discipline in New York City Public Schools, 56 N.Y.L. SCH. L. REV. 1373,
1380-81 (2011–2012).

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goal.”149 Yet the overwhelming focus of the Court — through both its
liberal and conservative phases — has not been on the costs to society
of the narrowness of the exclusionary rule failing to protect the
innocent, but rather on whether the application of exclusion is overly
broad or not, and whether it imposes excessive costs on society in
protecting the probably guilty.150 Thus, for all of their differences, the
Mapp Court, the Leon Court, and the Herring Court alike completely
disregarded the issue of how the rights of innocent people should be
protected.
The nature of the modern debate on the exclusionary rule is
illustrated by Justice Ginsburg’s dissent in Herring, which expressed
concern for the rights of innocent persons to be free from
unconstitutional searches and seizures, but proffered the wrong
solution: “[I]f courts are to have any power to discourage [police]
error . . . it must be through the application of the exclusionary
rule.”151 She expressed particular concern for the serious impact of the
Court’s holding on innocent persons wrongfully arrested.152 But
Justice Ginsburg also defended the exclusionary rule because of the
lack of alternative remedies, suggesting that neither civil liability,
criminal liability, nor administrative sanctions are realistic options for
the deterrence of unlawful government conduct.153
Thus, the majority and dissent in Herring rehashed many of the
same conservative and liberal rationales that have occupied the Court
since the introduction of the exclusionary rule.154 This debate,
however, is framed entirely around the question of whether evidence
obtained from guilty defendants may be admitted in a criminal trial. It
therefore misses an insuperable obstacle presented by the exclusionary
rule that was first acknowledged in Terry, that exclusion cannot
protect vulnerable groups from police harassment.155
The problem is not simply that the justices ignore the issue of police
harassing innocent suspects, particularly racial minorities. In crafting
the exclusionary rule, the Weeks and Mapp Courts stalled the
development of alternative remedies for Fourth Amendment
violations. By making exclusion of unlawfully obtained evidence the
149

Terry v. Ohio, 392 U.S. 1, 14 (1968).
See Herring v. United States, 555 U.S. 135, 147-48 (2009).
151 Id. at 148 (Ginsburg, J., dissenting) (quoting Arizona v. Evans, 514 U.S. 1, 2223 (1995)).
152 Id.
153 Id. at 153.
154 See id. at 147-48, 151-53.
155 See Terry v. Ohio, 392 U.S. 1, 14-15 (1968).
150

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automatic remedy for Fourth Amendment violations, the Court felt no
need to develop any alternative that would apply when exclusion did
not. The Rehnquist and Roberts Courts diverged from Mapp by
defining numerous exceptions, but stayed faithful to it in refusing to
provide any other remedy, even when the Court recognized
constitutional violations but did not provide the remedy of
exclusion.156
D. The Immunization of Racial Profiling
The power of the police to conduct stops and frisks even when
lacking probable cause was developed in Terry v. Ohio, a case in which
John Terry, a black man, was found with a concealed weapon after
being stopped by a police officer who concededly did not have
probable cause for a seizure or search.157 Officer McFadden could not
“say precisely what first drew his eye” to Terry and another man; he
had only the sort of “inarticulate hunch[]” that cannot constitute even
reasonable suspicion.158 He described his initial reaction to observing
the three suspects by saying “when I looked over they didn’t look right
to me.”159 Officer McFadden, however, did not seize or search the
subjects based on this hunch; rather, he observed the men for an
extended period of time, during which he saw them walk back and
forth before a shop window, stopping at opposite corners of the street
to confer roughly a dozen times.160 The Court concluded that, while
there was still no probable cause, these additional facts adequately
suggested that the men were casing a store, thus justifying the brief
and limited seizure that came to be known as the Terry stop.161
The Terry case has, however, since been relied on to justify stops on
far more feeble suspicion. For instance, one of us has previously
established that of the hundreds of thousands of stops in New York
conducted in 2011, the average stop was justified by only 1.66 factors,
156 See, e.g., Herring, 555 U.S. at 147-48 (exempting “police mistakes [that] are the
result of negligence . . . rather than systemic error or reckless disregard of
constitutional requirements” from exclusion, and providing no other remedy);
Hudson v. Michigan, 547 U.S. 586, 602 (2006) (exempting knock-and-announce
violations from exclusion and providing no other remedy).
157 See Terry, 392 U.S. at 4-5.
158 Id. at 5, 22.
159 Id. at 5.
160 Id. at 6.
161 See id. at 23-24 (“It would have been poor police work indeed for an officer of
30 years’ experience in the detection of thievery from stores in this same
neighborhood to have failed to investigate this behavior further.”).

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the most common of which were “furtive movements” and that the
individual was in a “high-crime neighborhood.”162 Not only were these
two subjective characteristics the most commonly relied upon, but the
correlation between them was extremely low, meaning that one of
these two subjective assessments was used as justification in most of
the stops, and only about half of stops had even one secondary factor
of suspicion.163
As mentioned, the Terry Court acknowledged that the exclusionary
rule would often be simply “ineffective as a deterrent,” in part because
“[e]ncounters are initiated by the police for a wide variety of purposes,
some of which are wholly unrelated to a desire to prosecute for
crime.”164 In particular, the Terry Court recognized that the
“wholesale harassment by certain elements of the police community,
of which minority groups, particularly Negroes, frequently complain,
will not be stopped by the exclusion of any evidence from any
criminal trial.”165 The application of the exclusionary rule in such
cases would thus be little more than a “futile protest against practices
which [exclusion] can never be used effectively to control.”166
The data concerning “hit rates” bear out this prophecy, as police
continue to stop blacks much more frequently than they do whites,
even though stops of whites are more likely to turn up evidence of
crime.167 Nevertheless, in the nearly fifty years since Terry was
decided, the Supreme Court has created no meaningful jurisprudence
to prevent the harassment of minorities in violation of the Fourth
Amendment. In fact, in those intervening years, the Court has only
made it more difficult for innocent victims of unlawful stops to
vindicate their rights.
As discussed, the Court has steadily fortified the doctrines of
qualified and sovereign immunity as effective defenses to
constitutional violations in the wake of Terry.168 Of note, in Anderson
v. Creighton, the Court stated that officials are immune from liability
“as long as their actions could reasonably have been thought

162

See Jacobi et al., supra note 31, at 943, 964.
See id. at 964.
164 Terry, 392 U.S. at 13.
165 Id. at 14-15.
166 Id. at 15.
167 Richardson, supra note 72, at 2037-38.
168 See, e.g., Mitchell v. Forsyth, 472 U.S. 511 (1985) (holding that the defendant
was immune from suit under the doctrine of qualified immunity, even though his
actions violated the Fourth Amendment).
163

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consistent with the rights they are alleged to have violated.”169
According to Anderson, these rights cannot be defined at any level of
generality but must be “clearly established in a more particularized”
sense.170 Thus, Anderson makes official civil liability entirely
dependent on what the Supreme Court has previously ruled in Fourth
Amendment cases.171 The Court has yet to decide a case in which it
has found a “clearly established right” to be free from police
harassment that is motivated by race under the doctrine of reasonable
suspicion. In fact, the Court effectively did the opposite in Whren v.
United States, foreclosing the availability of damages for defendants
who might be targeted because of their race, so long as there exists
some objectively reasonable basis that might have justified a seizure by
law enforcement.172
In Whren, a unanimous Court ruled that the actual motivations of
individual officers — even racial prejudice or some other invidious
motive — were irrelevant to Fourth Amendment protections.173 The
Court rejected petitioners’ argument that police violated their rights by
targeting them in a pre-textual stop.174 The facts in Whren were
commonplace: plainclothes vice-squad officers of the District of
Columbia Metropolitan Police Department were patrolling a “high
drug area” of the city in an unmarked car.175 They grew suspicious of
the youthful occupants of a truck with temporary license plates
waiting for an unusually long time at a stop sign, and saw the driver
look down into the lap of the passenger.176 When the police car
executed a U-turn to head back toward the truck, the truck turned
suddenly without signaling, and sped off at an “unreasonable”
speed.177 When the truck stopped at a traffic light, Officer Ephraim
Soto approached the car and observed two plastic bags containing
what appeared to be crack and then proceeded to arrest Whren and his
passenger.178

169

Anderson v. Creighton, 483 U.S. 635, 638 (1987).
Id. at 640.
171 This test has considerable overlap with the good-faith exception of Davis v.
United States, 564 U.S. 229, 244 (2011).
172 See Whren v. United States, 517 U.S. 806, 813-14 (1996).
173 Id.
174 Id. at 812-13.
175 Id. at 808.
176 Id.
177 Id.
178 Id. at 808-09.
170

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Whren argued that the stop was pre-textual but the Supreme Court
held that “a traffic stop is permissible as long as a reasonable officer in
the same circumstances could have stopped the car for the suspected
traffic violation.”179 Despite the apparent innocence of the traffic
violations at issue, the Court refused to assess whether the petitioners’
race (both of the petitioners were black) contributed to impermissible
factors motivating the stop.180 Instead, the Court announced that the
only inquiry the Court would entertain was whether objectively
reasonable grounds existed for the stop.181 The Court in Whren
effectively retreated from the task of protecting minority victims of
police harassment in Fourth Amendment cases, limiting its role to
assessments of objective facts, even if those facts did not motivate the
law-enforcement conduct at issue.
In so ruling, the Court effectively granted qualified immunity to
law-enforcement officials involved in cases where a post-facto
justification for a stop might vitiate a selective-enforcement claim.
Officers are protected by qualified immunity when their allegedly
unlawful action meets a standard of “objective legal
reasonableness.”182 When combined with the Heien case, Whren
creates enormous opportunity for police to target minorities and
provides little recourse against that conduct.
Thus, civil litigation is hardly a practical remedy for addressing the
constitutional problems of the stop-and-frisk era. The unprecedented
growth in stop-and-frisk techniques in recent decades suggests that
exclusion has done little to regulate police behavior in regards to the
innocent. The Supreme Court’s preoccupation with the unsatisfying
remedy of exclusion in an unrepresentative sample of cases has only
undermined the basic liberty enshrined in the Fourth Amendment.
E. Returning to Relevance: A Remedy for the Majority of Victims
Having recognized that police harassment of minorities cannot be
effectively curtailed by the exclusionary rule, and without civil
remedies adequate to deter constitutional violations,183 the Court
should recognize the “need to deter violations of constitutional
179

Id. at 809.
See id. at 810-12.
181 Id. at 810, 813.
182 Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citing Harlow v. Fitzgerald,
457 U.S. 800, 819 (1982)).
183 See Kerr, supra note 55, at 242-43; Perrin et al., supra note 55, at 710, 737-38;
Wasserstrom & Seidman, supra note 55, at 83.
180

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rights.”184 The Court must embrace its responsibility to prescribe
mechanisms by which Fourth Amendment violations may be deterred
if it is to be at all relevant in regulating the majority of Terry stops
conducted throughout the nation. Although the Court has largely
abdicated any role in proposing workable alternatives, others have
proposed methods that do not present the same social costs as
exclusion.
Central to the complaints regarding the inadequacy of civil litigation
as a reliable deterrent against Fourth Amendment violations is the
problem of damages. The costs of litigation often outweigh the
benefits of even meritorious civil suits because damages are likely to
be insignificant when “the harm suffered by individuals from the
constitutional violation itself may be small, widely dispersed, and
intangible . . . .”185 The Supreme Court has hesitated to address the
problems of proof inherent in defining intangible losses186 that result
from Fourth Amendment violations, such as invasions on one’s
personal liberty, freedom of movement, and bodily integrity.
Compensatory damages almost always fail to compensate for these less
tangible, but equally unconstitutional, deprivations of Fourth
Amendment rights. For this reason, scholars have proposed
“presumed general damages” as a remedial device in constitutional
tort litigation because they would guarantee a meaningful level of
compensation for the infringement of all constitutionally protected
interests.187
Guaranteed compensation could serve as a replacement for
exclusion because it would likely provide the automatic deterrence
that exclusion was originally designed to provide. At the same time,
presumed general damages would ameliorate the social costs of
exclusion, as criminals would not be set free as a result of a
constitutional violation. Instead, costs would be borne either by
individual officers, police departments, or county, state, or federal
governments. These costs would provide clearer incentives than
exclusion for police departments to retain and promote officers who
perform their duties in accordance with constitutional guarantees
while deterring police departments from retaining officers who do not.
An associated solution is administrative remedies, which could
provide for non-negotiable damages to all persons whose
184

Carey v. Piphus, 435 U.S. 247, 254 (1978).
Perrin et al., supra note 55, at 738.
186 Jean C. Love, Damages: A Remedy for the Violation of Constitutional Rights, 67
CALIF. L. REV. 1242, 1268-69 (1979).
187 Id. at 1282.
185

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constitutional rights are violated by police in the course of
investigative work, regardless of whether the alleged victim of the
constitutional violation is charged with a crime.188 An independent
executive agency could conduct preliminary review of any aggrieved
party’s verified complaint and determine if the alleged facts in the
complaint might be sufficient to constitute a constitutional
violation.189 If a constitutional violation were properly alleged, an
evidentiary hearing would follow in which both sides would have the
opportunity to prove and defend against the allegations in the verified
complaint.190 If a bad-faith violation were proven, the complainant
would be entitled to recover compensatory and punitive damages from
the respondent officer(s) or agency.191 Statutorily-mandated liquidated
damage recovery for any bad-faith constitutional violation would
remove the chilling effect that unspecified compensatory damages now
have on civil suits, while punitive damages would be available to
provide greater deterrence against egregious violations.192 At the same
time, administrative processes could provide caps on available
damages to prevent the abuse of administrative remedies.
The primary advantages of a doctrine of presumed or statutory
liquidated damages would be to provide direct deterrence against
police misconduct, as opposed to exclusion which provides at most
only indirect deterrence.193 Presumed or statutory liquidated damages
would incentivize innocent victims to bring claims and could alter the
legal landscape in which the most litigated Fourth Amendment cases
concern apparent criminals.
Alternatively, to assuage concerns without subjecting police officers
to monetary damages, administrative remedies could be entirely
punishment-based. Police officers would suffer employment-based
warnings and punishments, such as administrative leaves or
demotions, if found to have committed constitutional violations.
Either way, the burdens of police misconduct would no longer fall on
the truth-seeking process of the criminal justice system through the
exclusionary rule, but instead would fall on individual police officers
or on police departments, providing direct incentives for departments
to retain and promote police officers who do not violate the
Constitution.
188
189
190
191
192
193

See Perrin et al., supra note 55, at 744-45, 750.
Id. at 744-45.
Id. at 754.
See id. at 748-49.
See id. at 749.
See id. at 749-51.

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In the context of the United States’ federalist system, the Supreme
Court’s adoption of any of these remedies could serve to encourage
states and localities to provide their own alternative remedies.194 The
Court could reasonably condition a remedy’s application on the
absence of an adequate alternative remedy at the federal or state level.
The Court would thus encourage the federal government or the states
to provide their own meaningful solutions, tempering the possibility
of a flood of traditional courtroom litigation.
The point is not to promote one particular alternative remedy, but
rather to demand that the Court either create or enable some
alternative remedy, and not itself violate the most fundamental
constitutional principle that constitutional violations require
remedies.195 The exclusionary rule has dogged the Court for years
because of the clear benefit it provides to the guilty, while providing at
best only a trickle-down protection for the innocent. The Court may
be right to question the propriety of exclusion in cases where
significant criminal activity is discovered, but the Court prejudices the
rights of the innocent in providing no viable alternative remedy.
Tellingly, the Court in Terry acknowledged that the suppression of
evidence would never provide the protection from police harassment
for which minority groups continue to strive fifty years after Terry was
decided.196 While the Court continues to reconsider the propriety of
exclusion, it should also reconsider how it may assist in the
promulgation of remedies available for innocent victims of
unconstitutional police conduct, so as to make its decisions relevant to
the vast majority of people impacted by police conduct.
II.

PLEA-BARGAINING AND THE SUB-CONSTITUTIONAL CRIMINAL
JUSTICE SYSTEM

Jury trial is considered by the Supreme Court to be “of surpassing
importance” in the nation’s constitutional system because it is the
194 For an argument that litigation of constitutional tort remedies should be
recentered to the state courts — where state sovereign immunity is more easily waived
— as a means of providing effective enforcement mechanisms without major
constitutional change, see James E. Pfander & Jessica Dwinell, A Declaratory Theory of
State Accountability, 102 VA. L. REV. 153, 182 (2016). Pfander and Dwinnell argue for
a division of labor between federal courts, which would declare states’ compliance
with federal law, and state courts, which would accept the declaration and fashion a
money remedy in accordance with state law. See id.
195 See Marbury v. Madison, 5 U.S. 137, 147 (1803) (stating that “every right, when
withheld, must have a remedy, and every injury its proper redress”).
196 Terry v. Ohio, 392 U.S. 1, 14-15 (1968).

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place where “the great bulwark of [our] civil and political liberties”
reside.197 That notion was embraced by the nation’s founders. In
describing the contentious debates that occupied much of the
Constitutional Convention, Alexander Hamilton noted that at least
one proposed feature of the nascent country’s legal system had drawn
mutual and unanimous support:
The friends and adversaries of the plan of the convention, if
they agree in nothing else, concur at least in the value they set
upon the trial by jury; or if there is any difference between
them it consists in this: the former regard it as a valuable
safeguard to liberty; the latter represent it as the very
palladium of free government.198
Likewise, in a letter to Thomas Paine in 1789, Thomas Jefferson
expressed his opinion that trial by jury is “the only anchor, ever yet
imagined by man, by which a government can be held to the
principles of [its] constitution.”199
Today, however, millions of people in the United States are involved
in a criminal justice system in which disposition by way of the sacred
jury trial is the exception to the rule. From 1962 to 2002, the absolute
number of federal criminal trials declined by 30%.200 Over that same
period, the total United States’ prison population grew about
tenfold.201 In spite of greater contemporary judicial resources, the
criminal justice system is now concerned primarily with the
administration of pleas: in 1974, 80% of convictions nationally came
from plea-bargaining; today, the figure is approximately 97%.202 In
Arizona, plea-bargaining has been reported to dispose of 99.3% of
cases.203

197

Apprendi v. New Jersey, 530 U.S. 466, 477 (2000).
THE FEDERALIST NO. 83 (Alexander Hamilton).
199 Letter
from Thomas Jefferson to Thomas Paine (July 11, 1789),
https://founders.archives.gov/documents/Jefferson/01-15-02-0259 [hereinafter Letter
from Jefferson].
200 Pizzi, supra note 15, at 331.
201 See PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE
STATISTICS, PRISONERS IN 2002, at 1 (2003) (showing the total number of U.S. prisoners
to be 2,166,260 at yearend 2002); PATRICK A. LANGAN ET AL., U.S. DEP’T OF JUSTICE,
BUREAU OF JUSTICE STATISTICS, HISTORICAL STATISTICS ON PRISONERS IN STATE AND
FEDERAL INSTITUTIONS, YEAREND 1925–86, at 10 (1988) (showing the total number of
U.S. prisoners to be 218,830 in 1962).
202 Pizzi, supra note 15, at 331.
203 Id.
198

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Although only approximately 3% of criminal cases nationally are
now disposed of via trial, the Supreme Court has offered little
guidance as to how the “government can be held to the principles of
[its] constitution” in the absence of that anchor.204 Criminal-justice
cases constitute a greater portion of the Supreme Court’s docket than
ever before,205 but the Supreme Court largely limits the issues that it
considers within that docket to the rules governing trials. The Court
ting).
system of pleas,206 but it has not accordingly devoted its attention to
the most basic issues raised by plea-bargaining.207 Similarly, the Court
has refused to consider how the plea-bargaining regime undermines
the Bill of Rights’ constitutional guarantees, given that they were
designed in the expectation that defendants would take advantage of
the protections offered by the jury trial.
Instead, the Court addresses issues pertaining to a defendant’s rights
at trial with much greater frequency than the myriad issues that
accompany the plea-bargaining regime. The Court considers and
reconsiders what evidence is properly admissible in a criminal trial,208
whether certain evidence sought to be introduced at trial is obtained
in violation of the Fourth Amendment,209 whether a defendant’s Fifth
Amendment right against self-incrimination is properly observed at
trial,210 and whether the Sixth Amendment right to confront witnesses
is properly enforced at trial.211 By contrast, the Court touches on pleabargaining with far less regularity, justifying its refusal to regulate the
role of prosecutors by insisting that the exercise of prosecutorial
discretion is “ill-suited to judicial review.”212 Nevertheless, plea-

204

Letter from Jefferson, supra note 199.
See infra Table 1.
206 Lafler v. Cooper, 566 U.S. 156, 169-70 (2012).
207 See generally ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN
PROSECUTOR 43-60 (2007) (describing how the prosecutor has “the upper hand”
during plea-bargaining).
208 See, e.g., Ohio v. Clark, 135 S. Ct. 2173, 2180-81 (2015); Kansas v. Cheever,
134 S. Ct. 596, 602 (2013); Williams v. Illinois, 567 U.S. 50, 58 (2012); Michigan v.
Bryant, 562 U.S. 344, 354 (2011).
209 See, e.g., Birchfield v. North Dakota, 136 S. Ct. 2160, 2166-67 (2016); Utah v.
Strieff, 136 S. Ct. 2056, 2061 (2016); Rodriguez v. United States, 135 S. Ct. 1609,
1612 (2015); Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015).
210 See, e.g., White v. Woodall, 134 S. Ct. 1697, 1701 (2014); Salinas v. Texas, 133
S. Ct. 2174, 2178 (2013); Howes v. Fields, 565 U.S. 499, 514 (2012).
211 See, e.g., Woods v. Etherton, 136 S. Ct. 1149, 1152-53 (2016); Clark, 135 S. Ct.
at 2180-81; Williams, 567 U.S. at 58.
212 Wayte v. United States, 470 U.S. 598, 607 (1985).
205

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bargaining constitutes virtually all of the activity in the criminal
justice system and raises significant concerns regarding that system.
A. The Problem with Plea-Bargaining
The increasingly popular “tough-on-crime” political strategy213
employed across the country since the 1970s has led to a political
readjustment in which governments seek legitimacy by promising to
protect people from risk rather than providing citizens with
benefits.214 In times of preoccupation with crime, politicians benefit
from making promises of longer sentences for more criminals.215
Similarly, prosecutors are often rewarded for maximizing prison time
with additional resources and reelection.216
The ways in which prosecutors accomplish that goal are largely
unseen and almost entirely unregulated. Prosecutors enjoy virtually
unchecked and unreviewable authority to decide whether to file
charges,217 and they have nearly unlimited authority in deciding which
charges to file. The expansion of criminal laws on the books in recent
decades has given prosecutors further leeway in mixing and matching
offense elements so as to charge defendants with an ever-widening
array of crimes.218 Using this discretion, a prosecutor can wield
formidable leverage in dealing with defendants.
Overcharging — specifically “charge stacking” — forces defendants
to calculate the comparative risk between a jury trial and the lighter
bargained-for sentence, even if they are innocent.219 Stringent
213 Donald Trump employed such a strategy during his presidential run. Brandon
Howard, ‘Chicago Is out of Control’: Trump in His Own Words on the Windy City, CHI.
TRIB. (Oct. 20, 2016, 7:51 PM), http://www.chicagotribune.com/news/ct-donaldtrump-chicago-comments-20161020-story.html; Mike Lillis, Trump’s ‘Law-and-Order’
Gamble, HILL (July 14, 2016, 6:00 AM), http://thehill.com/homenews/campaign/
287635-trumps-law-and-order-gamble.
214 John F. Pfaff, The Empirics of Prison Growth: A Critical Review and Path Forward,
98 J. CRIM. L. & CRIMINOLOGY 547, 560 (2008).
215 MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA
180 (1995).
216 Adam Gopnik, How We Misunderstand Mass Incarceration, NEW YORKER (Apr.
10, 2017), http://www.newyorker.com/magazine/2017/04/10/how-we-misunderstandmass-incarceration.
217 See generally JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS
INCARCERATION — AND HOW TO ACHIEVE REAL REFORM (2017).
218 See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 359 (1978).
219 Mark Hay, Queens DA’s Early Plea Deal System Is Built on Something Rare: Trust,
GOTHAMIST (Feb. 22, 2017, 12:25 PM), http://gothamist.com/2017/02/22/queens_
early_plea_deals.php.

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mandatory minimums add to prosecutorial leverage,220 as do threestrikes rules.221 The difference between a two-year drug charge and a
minimum twenty-year drug charge can leave the defense with little
option but to accept a plea.
Meanwhile, the imbalance between prosecutorial and defense power
in bargaining varies between defendants, particularly between indigent
defendants — many of whom are detained pre-trial — and defendants
of means who await trial at home.222 Each of these defendants faces
vastly different prospects, and each may have wildly different
motivations for pleading guilty. While the Supreme Court’s limited
reasoning concerning the constitutional acceptability of pleabargaining, discussed in sections B and C below, may hold water for
the defendant of means out on bail, the Court has overlooked
fundamental differences in the potential motivations of a defendant
who bargains with the prosecution while in detention.
For indigent defendants who are unable to afford bail, pleading
guilty to minor crimes may serve the simple purpose of getting out of
jail as soon as possible so that these defendants may meet their
ongoing responsibilities in the outside world, such as childcare and
employment.223 Research has confirmed that being detained before
trial significantly increases the probability of a conviction, primarily
through an increase in guilty pleas.224 Once an indigent defendant has
pled guilty, however, the defendant’s criminal record can then be used
by the prosecution as leverage into plea bargains for more serious
sentences in subsequent cases.225 Minority groups bear the greatest
220 See Tina M. Olson, Strike One, Ready for More?: The Consequences of Plea
Bargaining “First Strike” Offenders Under California’s “Three Strikes” Law, 36 CAL. W.
L. REV. 545, 545-46 (2000); Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV.
BOOKS (Nov. 20, 2014), http://www.nybooks.com/articles/2014/11/20/why-innocentpeople-plead-guilty.
221 See Olson, supra note 220, at 545-46.
222 In addition to indigent defendants, a disparate impact has also been noted for
noncitizens and legal permanent residents, who can also face deportation. See Rebecca
Ibarra, When Prosecuting Immigrants, Brooklyn District Attorney Aims to Shield Them
from Deportation, WYNC NEWS (Apr. 24, 2017), http://www.wnyc.org/story/whenprosecuting-immigrants-brooklyn-da-aims-shield-them-deportation.
223 Alexandra Natapoff, Misdemeanors, 85 S. CAL. L. REV. 1313, 1346-47 (2012).
224 Will Dobbie et al., The Effects of Pre-Trial Detention on Conviction, Future Crime,
and Employment: Evidence from Randomly Assigned Judges 12-13 (Nat’l Bureau of Econ.
Research, Working Paper No. 22511, 2016), https://ssrn.com/abstract=2823319.
225 See Adam Benforado, Reasonable Doubts About the Jury System, ATLANTIC (June
16, 2015), https://www.theatlantic.com/politics/archive/2015/06/how-bias-shapes-juries/
395957 (explaining that defendants “can’t stop losing, because every time [they] return
from prison, [they] are in a worse position to gain the help [they] need”).

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burden in judging how to game the plea-bargaining system, as they are
increasingly among those arrested and prosecuted for low-level
offenses in state court, which constituted approximately 75% of all
prosecutions in New York from 2010 to 2011.226
Even for non-minor crimes, plea-bargaining has led to instances in
which actually innocent indigent defendants have pled guilty in order
to avoid the threat of heavier sentences. A stark illustration is the
guilty plea to manslaughter in lieu of capital murder by Victoria Banks
for the death of a baby that never existed. She was sentenced to fifteen
years, despite evidence that she had had her tubes tied prior to
entering her guilty plea.227
Due to a lack of clear legal limits on plea-bargaining, defendants
may waive their rights to exculpatory evidence under Brady in
exchange for leniency. This has created a system where fundamental
rights are used as bargaining chips.228 This system has led defendants
to surrender the right to assemble, to engage in certain occupations, to
procreate, and to file lawsuits, among others.229 Significantly, it is now
standard practice in federal court to require a waiver of appeal rights
before a plea is accepted, even while the government maintains its
right to appeal an adverse sentence.230 The Supreme Court has never
addressed the question of whether this is constitutional.231

226 Jason A. Cade, The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court, 34
CARDOZO L. REV. 1751, 1776 (2013).
227 See Bob Herbert, An Imaginary Homicide, N.Y. TIMES (Aug. 15, 2002),
http://www.nytimes.com/2002/08/15/opinion/an-imaginary-homicide.html. For numerous
examples of the preponderance of stereotypes about women that often lead to wrongful
convictions, see generally Andrea L. Lewis & Sara L. Sommervold, Death, but Is It Murder?
The Role of Stereotypes and Cultural Perceptions in the Wrongful Convictions of Women, 78
ALB. L. REV. 1035 (2014).
228 See Daniel P. Blank, Plea Bargain Waivers Reconsidered: A Legal Pragmatist’s
Guide to Loss, Abandonment, and Alienation, 68 FORDHAM L. REV. 2011, 2013, 2015
(2000).
229 Joseph A. Colquitt, Ad Hoc Plea Bargaining, 75 TUL. L. REV. 695, 722-23 (2001).
230 See Offices of the U.S. Attorneys, 626. Plea Agreements and Sentencing Appeal
Waivers — Discussion of the Law, U.S. DEP’T JUST., https://www.justice.gov/usam/
criminal-resource-manual-626-plea-agreements-and-sentencing-appeal-waivers-discussionlaw (last visited Mar. 20, 2018).
231 However, some Courts of Appeals have ruled specific rights non-waivable. See
United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994) (holding that effective
assistance of counsel is non-waivable); United States v. Jacobson, 15 F.3d 19, 22-23
(2d Cir. 1994) (ruling that appeal on the grounds that the sentence was based on
naturalized status is non-waivable); United States v. Marin, 961 F.2d 493, 496 (4th
Cir. 1992) (finding that appeal on the grounds that the sentence was based on race is
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While unregulated plea-bargaining may lead to constitutionally
questionable results in the cases of indigent defendants, that same
system may provide a windfall to defendants with private counsel who
defend themselves while out on bail. Patrick Keefe theorizes that the
plea-bargaining system is self-reinforcing: because most cases plead
out, prosecutors lack any significant courtroom experience, making
them timid when faced with a well-funded private attorney on the
other side of the table.232 Defendants out on bail are better able to
assist in their own defenses in various ways and thus enjoy superior
bargaining positions to defendants in detention.
The lack of guidance from the Supreme Court with respect to pleabargaining is especially concerning given that many of a defendant’s
core constitutional rights are not self-executing. To vindicate their
rights, in all but a few sets of circumstances, defendants must proceed
to trial.233 Thus, nearly all of the Supreme Court’s pronouncements
regarding the meaning of these core constitutional amendments carry
their true weight and effect only for those defendants who proceed to
trial. For every other criminal defendant, these rights are merely
negotiating chips in the system of plea-bargaining.
The Court has failed to recognize that the disappearance of the jury
trial necessitates a reconsideration of how the constitutional rights of a
defendant may be vindicated in the modern criminal justice system.
The Court has even welcomed the fact that plea-bargaining constitutes
the clear majority of activity in the criminal justice system precisely
because it spares the expenses that accompany adjudications governed
by constitutional rights.234 With this uncritical embrace of pleabargaining, the Court acquiesces to its own irrelevance as the nation’s
ultimate arbiter of constitutional rights and tacitly supports a subconstitutional system of criminal justice. It is time that the Court
reexamines its plea-bargaining jurisprudence, based as it is not on
constitutional principles, but on policy considerations. The Court
should consider whether those considerations continue to justify a
232 See Patrick Radden Keefe, Why Corrupt Bankers Avoid Jail, NEW YORKER (July 31,
2017), http://www.newyorker.com/magazine/2017/07/31/why-corrupt-bankers-avoid-jail.
233 Consider also the significant obstacles that arise in seeking collateral relief for
the defendant who has plead guilty. See Rebecca Stephens, Disparities in Postconviction
Remedies for Those Who Plead Guilty and Those Convicted at Trial: A Survey of State
Statutes and Recommendations for Reform, 103 J. CRIM. L. & CRIMINOLOGY 309, 313
(2013) (surveying the “diverse and unclear” state rules regarding postconviction relief
for those who plead guilty and arguing that differentiating by plea is inherently
unfair).
234 See United States v. Ruiz, 536 U.S. 622, 631-32 (2002); see also infra text
accompanying notes 283–87.

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criminal justice system which operates almost entirely outside the
confines of a meaningful constitutional framework.
B. Plea-Bargaining: A History of Unexplained Constitutionality
In the 1970s, the “previously clandestine” practice of pleabargaining was first addressed openly by the Supreme Court.235 In
Brady v. United States, the Court declared that plea-bargaining is not
inherently coercive, and thus a defendant’s guilty plea in response to
an offer of leniency is valid if voluntary.236 The Court enumerated the
perceived benefits of judicial economy and minimized exposure to
defendants as elements of the “mutuality of advantage” that
presumably made plea-bargaining so common, but it made no
reference to any constitutional principle that allowed the practice.237
Rather than finding the practice constitutional per se, the Brady Court
instead ruled that guilty pleas are not “constitutionally forbidden.”238
While the gist of the Brady opinion was that policy reasons alone
justify the practice, the Court advised of the need for continued
caution in guaranteeing sound results in plea-bargained cases.239
In Santobello v. New York240 the following year, the Court seemed to
heed its own call and begin to lay the groundwork for constitutional
checks on plea-bargaining. The Santobello Court held that the State
must keep its promise regarding a sentencing recommendation if that
promise resulted in a defendant’s guilty plea.241 The Court conceded
that plea-bargaining must be governed by a basic conception of
fairness242 and opined that procedural safeguards might attach to the
practice.243
Despite the warning of caution in Brady and the framework of
fairness alluded to in Santobello, no subsequent wave of jurisprudence
followed developing rules to guarantee sound results in plea-bargained
cases. Instead, the Court’s plea-bargaining case law after Santobello
simply acknowledges the practice and presumes its benefits, rather
than examining or regulating the potential fundamental-fairness issues
235
236
237
238
239
240
241
242
243

Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978).
Brady v. United States, 397 U.S. 742, 748-51 (1970).
Id. at 752.
Id. at 751-72.
Id. at 758.
404 U.S. 257 (1971).
Id. at 262.
Id. at 261.
Id. at 262.

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that plea-bargaining raises. The Court has never considered whether
plea-bargaining inherently undermines the constitutional values of
truth and accuracy, as the bargaining process collapses the traditional
roles of judge, jury, prosecutor, and defense counsel.244 The Court has
not considered whether plea-bargaining makes it easier for
prosecutors to obtain convictions in weaker cases.245 National
numbers for convictions have risen dramatically since the Supreme
Court conceded to the practice in the 1970s.246 During that time,
questions of fairness in the Supreme Court have been subsumed by a
host of policy rationales that cast plea-bargaining, and tacitly the
system of mass incarceration, as modern necessities, regardless of any
constitutional considerations.
In Bordenkircher v. Hayes, the Supreme Court baldly asserted that
the plea-bargaining system was legitimate.247 It made no reference to
precedent in which such a wholesale acceptance had been announced
and did not explain how that ruling fit with the promise of Santobello
just seven years earlier. The switch was instead largely justified by
policy considerations. In a 5–4 decision, the Bordenkircher Court
protected the leverage that prosecutors may use in the plea-bargaining
process from fairness considerations.248 After indicting the defendant
on a charge of uttering a forged instrument of $88.30 — an offense
punishable by a term of two to ten years in prison — the prosecutor
offered to recommend a sentence of five years in prison if the
defendant pled guilty.249 If the defendant did not plead guilty to that
offer, the prosecutor threatened to seek an indictment under a
habitual offender statute, which would subject Hayes to a mandatory
sentence of life imprisonment.250 Hayes chose not to plead guilty, and
the prosecutor obtained the threatened indictment.251 Hayes
proceeded to trial, where he was found guilty and sentenced to life
244 See Ken Strutin, Truth, Justice, and the American Style Plea Bargain, 77 ALB. L.
REV. 825, 831 (2013) (explaining that in the plea-bargaining process, the defendant
assumes the role of judge, jury, prosecutor, and defense counsel).
245 See generally Albert W. Alschuler, A Nearly Perfect System for Convicting the
Innocent, 79 ALB. L. REV. 919, 919-22 (2015) (describing how a prosecutor with a
weak case can still get a conviction).
246 See HARRISON & BECK, supra note 201, at 1 (showing the total number of U.S.
prisoners at yearend 2002 to be 2,166,260); LANGAN ET AL., supra note 201, at 15
(showing the total number of U.S. prisoners in 1970 to be 196,441).
247 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
248 See id.
249 Id. at 358.
250 Id. at 358-59.
251 Id. at 359.

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imprisonment.252 In a federal writ of habeas corpus, Hayes alleged that
the prosecutor’s conduct violated his constitutional rights, and on
appeal the Sixth Circuit Court of Appeals ruled that the prosecutor’s
conduct during the bargaining negotiations violated constitutional
principles announced in Blackledge v. Perry that protect defendants
from “the vindictive exercise of [prosecutorial] discretion.”253 The
Supreme Court granted certiorari to consider what it deemed “a
constitutional question of importance in the administration of
criminal justice.”254
The Bordenkircher Court was positioned to rule on the
constitutionality of plea-bargaining, but it found no constitutional
principle or precedent on which to justify the practice of pleabargaining wholesale or in the particular circumstances of Hayes’s
case. Instead, the Court simply announced that plea-bargaining had
already been accepted.255
The Bordenkircher Court acknowledged that “confronting a
defendant with the risk of more severe punishment clearly may have a
‘discouraging effect on the defendant’s assertion of his trial rights,’”
but reasoned that “‘the imposition of these difficult choices [is] an
inevitable’ — and permissible — ‘attribute of any legitimate system
which tolerates and encourages the negotiation of pleas.’”256 But, it
reasoned backwards that the defendant’s rights must not have been
impugned since such conduct is part and parcel of the system that it
was embracing. It then spelled out the exact nature of this syllogism,
saying: “by tolerating and encouraging the negotiation of pleas, this
Court has necessarily accepted as constitutionally legitimate the
simple reality that the prosecutor’s interest at the bargaining table is to
persuade the defendant to forgo his right to plead not guilty.”257
This language demonstrates the Court’s tacit acceptance of pleabargaining and locates a government interest in persuading defendants
to forgo trial.258 The abandonment of the constitutional question of
fairness has enabled the plea-bargaining regime to persist as part of the
negative space of undeveloped legal doctrine. Nearly the full extent of
constitutional regulation of plea-bargaining since Bordenkircher has
surrounded the single question of whether or not a defendant’s plea is
252
253
254
255
256
257
258

Id.
Id. at 360.
Id.
See id. at 364.
Id. (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973)).
Id.
See id.

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“voluntary and intelligent.”259 Plea-bargaining has since become
exponentially more common, but the Supreme Court has not
meaningfully expanded the scope of its review.
C. The Court’s Refusal to Regulate
The Supreme Court’s neglect in regulating plea-bargaining could
perhaps be justified if pleas operated in the shadow of the law of trials.
This section shows, however, that the Court has refused to apply to
plea-bargaining even the most basic due process rules that apply at trial.
To the extent that the Supreme Court has turned its attention to
plea-bargaining, it has focused on the role of defense counsel and has
found that defendants have a constitutional right to competent
assistance when making pleas.260 These cases, however, do not address
the underlying concerns of fairness and due process which the pleabargaining regime raises, but instead simply forbid incorrect and
incomplete advice from defense counsel when plea-bargaining.261
These cases are logical successors of the Court’s previous holdings that
pleas must be voluntary, and they reinforce the Court’s pattern of
encouraging defendants to participate in a sub-constitutional justice
system.
In Padilla v. Kentucky, the Court held that defense counsel was
required by the Sixth Amendment to inform her client that his plea
carried a risk of deportation and that her failure to do so constituted
ineffective assistance of counsel.262 Two years later, in Missouri v. Frye,
the Court held that the Sixth Amendment required defense counsel to
inform clients of plea offers before those offers expire, and that failure
to do so may render counsel’s assistance ineffective.263 In Lafler v.
Cooper, a companion case to Frye, the defendant rejected a favorable
plea offer on advice of defense counsel that the prosecution would not
be able to prove defendant’s intent to murder at trial because the
victim had not been shot above the waist.264 Whereas under the plea
offer the prosecutor would have recommended a sentence of fifty-one
to eighty-five months, after the defendant chose to proceed to trial on
that faulty advice, he was convicted and received a mandatory
259 See Cynthia Alkon, The U.S. Supreme Court’s Failure to Fix Plea Bargaining: The
Impact of Lafler and Frye, 41 HASTINGS CONST. L.Q. 561, 568, 588 (2014).
260 Lafler v. Cooper, 566 U.S. 156, 162 (2012).
261 See id. at 160-69.
262 Padilla v. Kentucky, 559 U.S. 356, 374 (2010).
263 Missouri v. Frye, 566 U.S. 134, 145 (2012).
264 Lafler, 566 U.S. at 161.

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minimum sentence of 185 to 360 months imprisonment.265 On appeal,
both the prosecution and the defense conceded that defense counsel’s
advice with respect to the plea offer fell below the standard of effective
assistance guaranteed by the Sixth Amendment.266 The Court held that
these facts met the Strickland prejudice standard.267
In his dissent in Lafler, Justice Scalia opined that the majority had
opened a “whole new field of constitutionalized criminal procedure:
plea-bargaining law.”268 Some commentators suggested that the
opinions of Frye and Lafler were revolutionary, invigorating the
defendant’s right to counsel.269 More recent commentators suggest,
however, that neither Frye nor Lafler address the plethora of
constitutionally dubious issues emanating from the plea-bargaining
regime because their holdings are confined to “single instances of bad
lawyering.”270 Frye and Lafler may rightly be understood as simply the
latest additions to a line of Supreme Court cases which uncritically
embrace plea-bargaining.
Rather than open the doors to stricter judicial oversight of the pleabargaining regime, the Frye holding actually threatens to subject
defendants to a criminal justice system with persistent barriers to
constitutional protection. Frye places a constitutional duty on defense
counsel to plea bargain by requiring defense counsel to inform their
clients whenever prosecutors make offers.271 This holding effectively
commands participation in a practice that the Supreme Court has
demonstrated a patent unwillingness to review for fundamental
fairness, and that often comes at the expense of the defendant’s
interest in receiving a fair trial to which constitutional protections
would apply. The singular focus by the Supreme Court on the
behavior of defendants, and now defense counsel, in the pleabargaining process is no substitute for what is currently needed from
the Supreme Court: guidance as to how a criminal justice system that
operates with virtually no trials may fulfill the Constitution’s promise
of due process of law.
265

Id.
Id. at 163.
267 Id. at 174.
268 Id. at 175 (Scalia, J., dissenting).
269 See generally Alkon, supra note 259, at 561-62 (summarizing and critiquing the
view of these cases as revolutionary).
270 Alkon, supra note 259, at 562; see also Alan J. Gocha, The Sanitization of
Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice, 8 GEO. J.L. &
MOD. CRITICAL RACE PERSP. 307, 326-27 (2016).
271 See Missouri v. Frye, 566 U.S. 134, 145 (2012).
266

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The Supreme Court has impliedly asserted that “the mutuality of
advantage” which plea-bargaining presents justifies the Court’s
abdication of its responsibility to assess the fairness of such
arrangements.272 As the plea-bargaining regime has expanded,
however, so too has the significance of prosecutorial power, which
remains almost entirely unregulated by the Court. The plea-bargaining
process is structured in accordance with the power of prosecutors to
bring charges based upon minimal evidence. Yet, the Supreme Court
has refused to consider how due process may be implicated by the
pressure that prosecutors are permitted to exert on defendants in the
plea-bargaining process.273 In so doing, the Court excludes itself from
a meaningful review of nearly every guilty adjudication in the United
States. Further amplifying the Court’s irrelevance to the vast majority
of activity in the criminal justice system is the way in which the Court
has revered prosecutorial power at the expense of constitutional
protections.
In the unanimous 2002 decision of United States v. Ruiz, the
Supreme Court declined to extend to plea-bargained cases the plain
language holding of Brady v. Maryland that due process entitles
defendants to exculpatory evidence.274 In Ruiz, the prosecution offered
the defendant a “fast track” plea agreement which provided that the
defendant would waive her right to impeachment evidence against
adverse informants or witnesses.275 Ruiz objected to the condition, and
the prosecutors withdrew their offer, before indicting Ruiz on a charge
of unlawful drug possession.276 Ruiz then pled guilty, despite the
absence of any agreement.277 She then asked the sentencing judge to
sentence her according to the “fast track” agreement, but the judge
refused.278 Ruiz appealed to the Ninth Circuit, which ruled that the
prosecutor’s plea offer was unlawful for insisting upon the waiver of
the defendant’s right to exculpatory information.279 The Supreme
Court disagreed, opining that a defendant’s right to Brady material is

272 See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); Brady v. United States,
397 U.S. 742, 752-53 (1970).
273 See Bordenkircher, 434 U.S. at 364 (permitting prosecutors to threaten more
serious charges if a defendant refuses to accept a plea deal).
274 See United States v. Ruiz, 536 U.S. 622, 628-31 (2002).
275 Id. at 625.
276 Id.
277 Id. at 625-26.
278 Id. at 626.
279 See id.

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part only of the “fair trial” guarantee, rather than an independent due
process right.280
This decision was not based on clear and convincing precedent.
While Brady did arise on appeal from a conviction obtained via trial,
its holding reads as follows:
We now hold that the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.281
The Brady decision is indisputably premised on the principle of a fair
trial, but it is also indisputably premised on fair treatment of the
accused:
Society wins not only when the guilty are convicted but when
criminal trials are fair; our system of the administration of
justice suffers when any accused is treated unfairly.282
With Ruiz, the Court could have extended in a logical manner a
basic due process right to exculpatory evidence, thereby reviving the
concept of fairness which undergirded its decision in Santobello. But
the Court unanimously rejected the contention that fundamental
fairness should apply to the plea-bargaining process, favoring instead
the Government’s interest in securing guilty pleas.283 The Ruiz Court
demonstrated an overarching concern that any decision bearing on
prosecutorial strategy might lead to the Government abandoning its
“heavy reliance” on plea-bargaining.284
In effect, the Ruiz decision is a recapitulation of Bordenkircher’s
unsatisfactory explanation as to why plea-bargaining is tolerable in a
society premised upon a Constitution that limits government power.
The Court in Ruiz suggests that the “resource-saving” advantages of
plea-bargaining are preferable to a system that requires trial
preparation on the part of the prosecution.285 The Court explicitly
deems access to exculpatory information only a “small . . .

280
281
282
283
284
285

Id. at 628, 633.
Brady v. Maryland, 373 U.S. 83, 87 (1963).
Id.
Ruiz, 536 U.S. at 631.
Id. at 632.
Id.

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constitutional benefit” in comparison with the advantages of
conserving prosecutorial resources.286
The reasoning of Ruiz is a hallmark of the increasing irrelevance of
the Supreme Court’s continued doctrinal focus on trial rights. As the
Supreme Court plainly indicated in Ruiz, trial preparation is more
costly to the Government than plea-bargaining, and thus the
Government reasonably relies on plea-bargaining in more than 90% of
federal criminal cases.287 That reasoning, however, is little more than
an acknowledgement that economics govern our criminal justice
system rather than the Constitution.
In the United States, pleas have been a typical means of conviction
since the early twentieth century,288 long before plea-bargaining per se
was acknowledged openly by the Supreme Court. Around the world, it
seems that some measure of plea-bargaining is nearly impossible to
suppress regardless of its legality. Notably, Japan explicitly prohibited
plea-bargaining by law until very recently.289 Despite the previous lack
of formal plea bargains, however, defendants in Japan could confess in
exchange for a prosecutor’s recommendation of a lenient sentence.290
A confession in Japan thereby functioned analogously to a plea
bargain, and defendants confessed in Japan nearly 93% of the time
despite plea-bargaining’s outward illegality.291 Plea-bargaining may be
inescapable as a practical solution to the needs of overtaxed modern
criminal justice systems, even if a society might purport to disallow it.
If plea-bargaining is likely to be central to any criminal justice system,
it accordingly warrants regulation. In the United States, the Supreme
Court has defended openly the government’s interest in pleabargaining without offering guidance as to how it might comport with
the Constitution’s guarantee of due process.
The unanimous decision in Ruiz saw the Supreme Court confirm its
own irrelevance to the plea-bargaining regime in two discrete, yet
interrelated, ways. First, the holding stated that to earn a due process
286

See id.
Id.
288 Doug Lieb, Vindicating Vindictiveness: Prosecutorial Discretion and Plea
Bargaining, Past and Future, 123 YALE L.J. 1014, 1023 (2014).
289 Hanna Kozlowska, Japan’s Notoriously Ruthless Criminal Justice System Is Getting
a Facelift, QUARTZ (May 26, 2016), https://qz.com/693437/japans-notoriously-ruthlesscriminal-justice-system-is-getting-a-face-lift; see also J. Mark Ramseyer & Eric B.
Rasmusen, Why Is the Japanese Conviction Rate So High? 3 (Harvard Law Sch. John M.
Olin Ctr. for Law, Econ. & Bus., Paper No. 240, 1998) (discussing the prior
unavailability of plea bargains in Japanese law).
290 Ramseyer & Rasmusen, supra note 289, at 3.
291 Id. at 4.
287

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protection designed to promote fair and just results, a defendant must
proceed to trial.292 In the same decision, the Court protected the
Government’s interest in not proceeding to trial, where the defendant
would receive such protections.293 By protecting the Government’s
interest in not proceeding to trial, the Court effectively incentivized
the Government to avoid subjecting itself to the demands of the
Constitution. Consequently, the political and economic demands that
have given rise to the plea-bargaining regime guide the criminal justice
system to a far greater extent than does the Supreme Court.
Meanwhile, the Court occupies itself primarily with the regulation of
the criminal trial, a feature of our constitutional democracy that has
never been more irrelevant.
III. MASS INCARCERATION, CONSTITUTIONAL SENTENCING, AND THE
DEATH ROW CONSTITUTION
The rate of imprisonment in the United States is a global anomaly.
The U.S. now has the highest incarceration rate in the world,294
imprisoning approximately 25% of the world’s prisoners while
accounting for only 5% of the world’s population.295 This
phenomenon is relatively new. Until around 1975, the rate of
imprisonment in the United States remained stable and in line with
global averages,296 before increasing more than sevenfold in the
following forty years.297 During this period, nearly every state and the
federal government increased the severity of its sentencing practices
by specifying, among other things, longer prison terms for non-capital
offenses.298 The resulting increases in both the severity of punishment
292

See Ruiz, 536 U.S. at 633.
See id.
294 Anne R. Traum, Mass Incarceration at Sentencing, 64 HASTINGS L.J. 423, 428
(2013).
295 NAT’L RESEARCH COUNCIL, THE GROWTH OF INCARCERATION IN THE UNITED STATES
2 (2014).
296 Mary D. Fan, Beyond Budget-Cut Criminal Justice: The Future of Penal Law, 90
N.C. L. REV. 581, 587 (2012).
297 See NAT’L RESEARCH COUNCIL, supra note 295, at 2.
298 See id. at 3 (describing how the rate of imprisonment grew exponentially as a
result of a number of factors). Perhaps most significantly, punishment policy in the
United States began to change in the 1970s, when prison time increasingly became
required for lesser offenses. Id. Mandatory prison time became even more common in
the 1980s, when the U.S. Congress and most state legislatures mandated variations on
the 5, 10, and 20 schemes for repeat offenders. Id. In the 1990s, Congress and more
than one-half of states enacted “three strikes and you’re out” laws that mandated
minimum sentences of twenty-five years or longer for affected defendants. Id. Today,
293

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and the frequency of incarceration have resulted in what is now
commonly called “mass incarceration.”299 While mass incarceration
has taken shape, the Supreme Court has not accordingly expanded its
analysis of the constitutional implications of longer prison sentences
for a historically unprecedented number of people. Instead, the Court
has spent those years focusing nearly all its attention on a single
penalty, which in practice affects only about 3,000 of the
approximately 6.9 million people under the supervision of the United
States’ adult correctional systems (fewer than 0.05%): the death
penalty.300
This Part examines how the Supreme Court has taken ownership of
the death penalty to the exclusion of virtually all other sentencing
practices. While imposing death is undoubtedly a unique penalty
deserving of the Court’s attention, the Court has used its focus on
capital punishment to justify eliding its responsibility to apply the
Constitution to far more common sentencing practices.
A. Death Row in the Age of Mass Incarceration
In practice, the death penalty affects a statistically negligible portion
of the millions of people under penal control in the United States. In
2013, only 3,108 of the approximately 2.2 million people imprisoned
in the U.S. (roughly one-tenth of 1% of prisoners) were on death
row.301 An additional 4.8 million people were on probation or parole,
meaning that, as of 2013, approximately 6.9 million people were
scholars are increasingly of the opinion that the anomalously high rates of
incarceration in the United States create injustices in and of themselves, most
glaringly in regards to poor and minority communities. See id.
299 Traum, supra note 294, at 426.
300 See DEBORAH FINS, NAACP LEGAL DEF. & EDUC. FUND, INC., CRIMINAL JUSTICE
PROJECT, DEATH ROW U.S.A.: SPRING 2013, at 1 (2013), http://www.naacpldf.org/files/
publications/DRUSA_Spring_2013.pdf [hereinafter DEATH ROW 2013] (listing the total
number of death-row inmates as of April 1, 2013); LAUREN E. GLAZE & DANIELLE
KAEBLE, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 2013, at 1 (2014), https://www.bjs.gov/content/
pub/pdf/cpus13.pdf (listing the total number of people under the supervision of U.S.
adult correctional systems as of yearend 2013).
301 See FINS, DEATH ROW 2013, supra note 300, at 1 (stating the total number of
death-row inmates as of April 1, 2013); GLAZE & KAEBLE, supra note 300, at 2 (listing
the total number of people incarcerated in the United States as of yearend 2013). The
“Highlights” section contains the “1 in” numbers. Id. at 1. Table 1 lists adult numbers.
Id. at 2. Table 5 charts male and female numbers. Id. at 6. Appendix table 5 comprises
“[e]stimated number of persons supervised by adult correctional systems, by
correctional status, 2000–2013.” Id. at 13. Appendix table 2 specifies “[i]nmates held in
custody in state or federal prisons or in local jails, 2000 and 2012–2013.” Id. at 12.

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under correctional supervision.302 Thus, death-row prisoners make up
approximately 0.05% of all people serving criminal sentences in the
United States. In recent years, states such as Maryland, Illinois, and
New Mexico have abolished the death penalty,303 while thirty-one
states continue to allow the practice, although the frequency with
which these States use the practice varies widely. Since 1976, more
than half of the 1,468 people executed in the United States were tried
and sentenced in only three states: Texas, Oklahoma, and Virginia.304
Despite the infrequency of the death penalty in the United States, the
Supreme Court has considered the constitutional implications of the
sentence more than 200 times since 1972,305 while only rarely
considering the constitutionality of sentences involving other forms of
punishment.
The system of mass incarceration began its speedy rise at virtually
the same moment that the Supreme Court embraced execution as an
issue of constitutional significance in the 1970s.306 A decade before its
groundbreaking decision in Furman v. Georgia, which effectively
struck down all death-penalty schemes in the United States,307 the
Court had ruled that the Eighth Amendment applied to the states by
way of the Fourteenth Amendment in Robinson v. California, a noncapital case.308 The rule that criminal defendants in state courts should
receive Eighth Amendment protections, however, has since been
applied almost exclusively to defendants facing the death penalty.
After issuing only two capital case decisions between 1937 and 1967,
the Supreme Court changed course dramatically, issuing at least 209
capital case decisions between 1972 and 2006.309 Over that same
period, as nearly every State and the federal government increased the
302

GLAZE & KAEBLE, supra note 300, at 2.
States with and Without the Death Penalty, DEATH PENALTY INFO. CTR.,
https://deathpenaltyinfo.org/states-and-without-death-penalty (last visited Feb. 3, 2018).
304 See
Facts About the Death Penalty, DEATH PENALTY INFO. CTR.,
http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (last updated Feb. 2, 2018).
305 James S. Liebman, Slow Dancing with Death: The Supreme Court and Capital
Punishment, 1963–2006, 107 COLUM. L. REV. 1, 14 n.42 (2007).
306 See, e.g., Gregg v. Georgia, 428 U.S. 153, 171 (1976) (determining that Eighth
Amendment analysis is not limited to the prohibition of “‘barbarous’ methods that
were generally outlawed in the 18th century”); Furman v. Georgia, 408 U.S. 238, 239240 (1972) (per curiam) (holding that imposition of the death penalty in the instant
cases would “constitute cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments”).
307 See Furman, 408 U.S. at 239-41.
308 See Robinson v. California, 370 U.S. 660, 666 (1962); DAVID GARLAND, PECULIAR
INSTITUTION 216 (2010).
309 Liebman, supra note 305, at 14 n.42.
303

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severity of their non-capital sentencing practices, the Court eroded
virtually all of the minimal constitutional sentencing protections that
applied to non-capital criminal defendants.310
Today, many of the Supreme Court’s sentencing doctrines
concerning the death penalty have little to no application in noncapital cases. The thousands of pages of ink which the Supreme Court
has devoted to sentencing apply almost exclusively to capital
punishment, concerning issues such as what evidence might be
admitted,311 what jury instructions defendants are entitled to,312 who
may find facts,313 the permissible conditions for excusing jurors,314 and
the constitutionality of available methods of execution,315 to name a
few. In contrast, the Court has largely ignored questions of law
applicable to the overwhelming majority of those subject to the
criminal justice system, even though the animating principles of the
Court’s death-penalty jurisprudence have been imported from nondeath-penalty cases. These principles include the proportionality316
and evolving standards of decency317 doctrines. The Court has
consistently refused to serve as the final arbiter and constitutional
leader in the regulation of sentencing beyond the death penalty, even
as the more common, non-capital sentencing practices are increasingly
questioned by prosecutors, defense attorneys, and judges alike.318 This
amounts to an abdication of its responsibility to guide lower courts
that are unwittingly complicit in the system of mass incarceration.319
The Supreme Court’s acquiescence to the mass-incarceration system
results from its volatile interpretations of the reach of the Eighth
310 See NAT’L RESEARCH COUNCIL, supra note 295, at 2-3 (describing how the rate of
imprisonment grew exponentially from the 1970s, as prison time increasingly became
mandatory for lesser offenses, and Congress and more than one-half of states enacted
“three strikes” laws mandating minimum sentences of twenty-five years or longer for
affected defendants).
311 See Bosse v. Oklahoma, 137 S. Ct. 1, 2-3 (2016) (reconfirming the prohibition
on characterizations and opinions from a victim’s family members about the crime,
the defendant, and the appropriate sentence).
312 See Kansas v. Carr, 136 S. Ct. 633, 642-43 (2016).
313 See Hurst v. Florida, 136 S. Ct. 616, 619 (2016).
314 See Davis v. Ayala, 135 S. Ct. 2187, 2200-08 (2015).
315 Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015).
316 See Weems v. United States, 217 U.S. 349, 366-67 (1910).
317 See Trop v. Dulles, 356 U.S. 86, 101 (1958).
318 See generally Mark Osler & Mark W. Bennett, A “Holocaust in Slow Motion?”:
America’s Mass Incarceration and the Role of Discretion, 7 DEPAUL J. SOC. JUST. 117, 11920 (2014) (describing how judges and prosecutors have been complicit in — and
concerned about their role in — mass incarceration).
319 See id.

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Amendment and other constitutional principles to non-capital
sentencing practices. In establishing the Court’s death-penalty regime
in 1976 in Gregg v. Georgia, the Court borrowed from its non-capital
Eighth Amendment jurisprudence to animate what was effectively a
new area of constitutional law: death-penalty law.320 Many of the
Court’s decisions concerning the constitutionality of capital and noncapital sentencing practices since Gregg have not seen the Court acting
with one voice, and a host of decisions have obscured how the Court
views the applicability of the Constitution to various sentencing
practices. For example, the Court has ruled that the Constitution
requires all criminal sentences (capital or not) to be proportionate to
the severity of the offense,321 but has also ruled that this doctrine
should apply only to the death penalty, if at all.322 Amid this doctrinal
dissonance, the Court has effectively drawn a line demarcating the
death penalty, and, recently, juvenile life without parole,323 as the only
sentencing practices deserving of meaningful constitutional review —
two sentencing practices which have virtually no measurable effect on
the mass-incarceration system.
Examination of Supreme Court precedent pre-Gregg reveals no
constitutional rationale for the Court’s reluctance to apply the
Constitution to non-capital criminal sentencing. In fact, all pre-Gregg
precedent requires the Court to apply the Eighth Amendment to noncapital sentences.324 Since Gregg, however, the Court has regularly
refused to do so based on the conclusory statement that “death is
different.”325 The post-Gregg period has also seen the Court attempt to
justify why it should not apply the Eighth Amendment outside of the
death penalty on federalist grounds, even though the Eighth
Amendment did apply outside of the capital context before Furman.326
Finally, as we show in Part IV, in ostensibly defending federalist
principles, the Court has effectively eroded any meaningful conception
of federalism in its capital-sentencing jurisprudence.

320

See Gregg v. Georgia, 428 U.S. 153, 170-73 (1976).
See Solem v. Helm, 463 U.S. 277, 284 (1983).
322 See Harmelin v. Michigan, 501 U.S. 957, 992-94 (1991) (Scalia, J., delivering a
separate opinion); Rummel v. Estelle, 445 U.S. 263, 271-72 (1980).
323 See infra Subpart IV.C.
324 See, e.g., Trop v. Dulles, 356 U.S. 86, 99-100 (1958); Weems v. United States,
217 U.S. 349, 379-82 (1910).
325 Gregg, 428 U.S. at 188.
326 See, e.g., Robinson v. California, 370 U.S. 660, 666-67 (1962); Trop, 356 U.S. at
99-101; Weems, 217 U.S. at 379-82.
321

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B. Constitutionalizing Death with Non-Death Jurisprudence
In 1972, the Supreme Court struck down virtually all death-penalty
schemes in the United States with a per curiam opinion that lacked a
majority rationale.327 The Furman decision was unprecedented and
controversial, as the Court had rejected a similar constitutional
challenge to the death penalty the previous year.328 Furman consisted
of nine separate opinions, but while the Court lacked a cohesive
opinion, five concurring justices identified as constitutionally infirm
the apparent arbitrary application of the death penalty in the absence
of procedural safeguards.329 Justices Stewart, Marshall, and Douglas
also expressed concerns about the apparent racial bias against black
defendants engendered by seemingly arbitrary processes.330
The national reaction to Furman was mixed, and within two years,
thirty-five states had enacted new capital statutes.331 By the end of
1974, 231 people had been sentenced to death under statutes enacted
after Furman.332 Only four years after effectively dismantling the death
penalty, the Court began the work of constitutionalizing its
administration in Gregg v. Georgia, an ongoing process that continues
to absorb the Court’s attention forty years later. To constitutionalize
the death penalty and effectively create a new field of constitutional
law, the Court borrowed from its non-capital sentencing jurisprudence
to provide a doctrinal foundation rooted in precedent. In attempting
to animate that foundation, the Court imported the non-capital
sentencing doctrine of proportionality — which had been a part of the
Court’s Eighth Amendment jurisprudence since 1910333 — and the
non-capital evolving standards of decency doctrine first announced in
1958.334
In Gregg, the Supreme Court effectively reinstated the death penalty
after reviewing updated state statutes which had been tailored to cure
the constitutional infirmities identified in Furman.335 The cures were
327 See Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam) (striking
down the death penalty in the instant cases due to evidence of capital sentences
violating the Eighth Amendment).
328 See McGautha v. California, 402 U.S. 183, 196 (1971).
329 See Furman, 408 U.S. at 240.
330 See id. at 242, 249-57 (Douglas, J., concurring); id. at 309-10 (Stewart, J.,
concurring); id. at 364-65 (Marshall, J., concurring).
331 GARLAND, supra note 308, at 233.
332 Id.
333 See Weems v. United States, 217 U.S. 349, 367 (1910).
334 See Trop v. Dulles, 356 U.S. 86, 101 (1958).
335 See Gregg v. Georgia, 428 U.S. 153, 196-207 (1976).

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various among the states, but the Georgia statute, approved in the lead
case of Gregg, provided for bifurcated trials, mandatory appellate
review of comparable cases to determine whether a sentence of death
would be disproportionate to the crime committed, and an inquiry by
the state supreme court as to “[w]hether the sentence of death was
imposed under the influence of passion, prejudice, or [any] arbitrary
factor.”336
Proportionality was the doctrinal touchstone of Gregg’s controlling
plurality opinion. The Court, in reviving the death penalty, attempted
to address the federalist critique of Furman by explaining that, while
the Court had drawn lines over which the states could not cross, it
would defer to legislatively enacted punishments so long as they were
not “disproportionate” to the crime involved.337 The Court approved
the use of proportionality review as a procedural safeguard in the
Georgia statute, and since Gregg, proportionality review has been
employed in many states’ death-penalty schemes.338
Yet, after importing the rule of proportionality from its non-capital
precedent to animate its new death-penalty jurisprudence, the Court
has been startlingly uneven in its recognition of the proportionality
principle as a feature of the Eighth Amendment outside of the death
penalty. The Court declared in Solem v. Helm that proportionality
review was a general constitutional requirement in all criminal
sentencing,339 only to state in Rummel v. Estelle that proportionality is
virtually inapplicable outside of the death penalty context.340 Neither
Rummel nor Solem has been overruled, and they both remain viable
precedent, even though they presumably require different
outcomes.341
With the applicability of the proportionality rule in limbo, from
1983 until 2010 not a single non-capital sentence was ruled
unconstitutional by the Court for want of proportionality. While the
principles of federalism and judicial deference to legislatures were
relied on to justify this stance, the Court’s incongruous treatment of
proportionality more rightly reflects a repudiation of its responsibility
to determine how the Eighth Amendment should be interpreted
outside of the death penalty.
Furthermore, the federalism concerns the Court proclaimed that it
336
337
338
339
340
341

Id. at 163, 166-67.
See id. at 174-76.
See Pulley v. Harris, 465 U.S. 37, 42-44 (1984).
See Solem v. Helm, 463 U.S. 277, 284 (1983).
See Rummel v. Estelle, 445 U.S. 263, 272 (1980).
Solem, 463 U.S. at 288 n.13 (stating that it does not overrule Rummel).

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was protecting by refusing to apply the Eighth Amendment in noncapital contexts were belied by the Court’s embrace of its supervisory
role as arbiter of the death penalty. As detailed below, recently the
Court has applied the Eighth Amendment to life sentences without
possibility of parole for juveniles;342 but it has done so without
providing any coherent explanation, consistent with principles of
federalism, for why death and juvenile life sentences are different from
all other sentencing practices.
C. Sentencing Weems to Death
Gregg’s main plurality opinion drew the proportionality principle
from the non-capital case of Weems v. United States.343 In Weems, a 5–2
majority found unconstitutional a Philippine court’s imposition of
punishment for falsifying an official document by cadena temporal.
The punishment included imprisonment for twelve years and one day
during which the prisoner should at all times carry a chain at the
ankle, hanging from the wrists, performance of hard labor for the
benefit of the state, loss of certain civil rights, and, thereafter, lifetime
surveillance.344 The Weems Court concluded such penalties are
astonishing to those who “believe that it is a precept of justice that
punishment for crime should be graduated and proportioned to
offense.”345
The Weems Court addressed federalist concerns about the role the
Court should play in reviewing legislatively enacted punishments,
referencing an 1899 case from the Supreme Judicial Court of
Massachusetts for the following discussion:
It is for the legislature to determine what acts shall be regarded
as criminal and how they shall be punished. It would be going
too far to say that their power is unlimited in these respects.
Ordinarily, the terms “cruel and unusual” imply something
inhuman and barbarous in the nature of the punishment . . . .
But it is possible that imprisonment in the state prison for a
long term of years might be so disproportionate to the offense
as to constitute a cruel and unusual punishment.346

342

See infra Subpart IV.C.
See Gregg v. Georgia, 428 U.S. 153, 171-72 (1976) (citing Weems v. United
States, 217 U.S. 349, 366-67 (1910)).
344 Weems, 217 U.S. at 364.
345 Id. at 366-67.
346 Id. at 368 (citing McDonald v. Commonwealth, 53 N.E. 874, 875 (Mass. 1899)
343

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The Weems Court took pains to explain that the cruel and unusual
punishments clause was not meant to be an empty promise or merely
an admonishment to sovereigns; rather, it was a vehicle for the Court
to prevent legislatures from imposing punishments which in
application may be cruel and unusual. Referencing Patrick Henry, the
Court concluded that the clause expressly limited the powers of
legislatures: while certain framers thought that the cruel and unusual
punishments clause would be unnecessary because the spirit of liberty
would prevent such enactments, “Henry and those who believed as he
did would take no chances.”347 The Court wrote of the ratification of
the cruel and unusual punishments clause:
With power in a legislature great, if not unlimited, to give
criminal character to the actions of men, with power unlimited
to fix terms of imprisonment with what accompaniments they
might, what more potent instrument of cruelty could be put
into the hands of power? And it was believed that power might
be tempted to cruelty. This was the motive of the clause, and if
we are to attribute an intelligent providence to its advocates
we cannot think that it was intended to prohibit only practices
like the Stuarts’, or to prevent only an exact repetition of
history. We cannot think that the possibility of a coercive
cruelty being exercised through other forms of punishment
was overlooked.348
The Weems Court also found that the Eighth Amendment, like all
provisions of the Constitution, “must be capable of wider application
than the mischief which gave it birth.”349 Thus, the cruel and unusual
punishments clause did not apply solely to punishments which might
have been considered cruel and unusual historically, for such a
construction would render the principle almost entirely moot.350 The
Court declared that it was and is the province of the courts to provide
meaningful and continuing oversight over all manner of legislatively
enacted punishments. Ultimately, the Court held that the punishment

(citations omitted)). The Weems Court also referenced a dissenting opinion of Justice
Field in the case of O’Neil v. Vermont, 144 U.S. 323, 339-40 (1892). Weems, 217 U.S.
at 371 (“[T]he inhibition was directed not only against punishments which inflict
torture, ‘but against all punishments which, by their excessive length or severity, are
greatly disproportioned to the offenses charged.’”).
347 Id. at 372.
348 Id. at 372-73.
349 Id. at 373.
350 See id.

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handed down in the instant case was “cruel in its excess of
imprisonment,”351 but not because of the foreignness of the sentence,
finding that the sentence would be unconstitutional if it were found in
a federal enactment.352
Although Weems continues to be good law, the Court has bifurcated
its treatment of proportionality as a principle of constitutional
sentencing since Gregg. The Court has approved the use of
proportionality review to prevent states from arbitrarily imposing the
death penalty but has frequently refused to review all other sentences
for proportionality. This has in large part been due to the Court’s
conservative justices’ insistence that the Court would breach federalist
principles if it were to occupy a supervisory role over legislatively
enacted punishments. Post-Furman, the Court’s conservative wing has
seemed willing “to split the baby” by accepting the Court’s supremacy
over the death penalty while eschewing review of non-capital
sentencing practices.
In 1980, the conservative wing of the Court demonstrated its
hostility to a general proportionality rule applying outside the context
of the death penalty. In Rummel v. Estelle, the Court considered a
defendant’s challenge to his life sentence imposed by Texas under the
state’s recidivist statute.353 In 1964, Rummel had pled guilty to the
fraudulent use of a credit card in the amount of $80; in 1969, he had
pled guilty to passing a forged check in the amount of $28.36; and in
1973, he was convicted of felony theft by a jury for obtaining $120.75
by false pretenses.354 Since he had been convicted of two prior
felonies, the trial court imposed the life sentence mandated by Texas’s
recidivist statute.355 In a petition for a writ of habeas corpus in the
federal district court, Rummel argued that his life sentence was so
disproportionate to the crimes he had committed as to constitute cruel
and unusual punishment.356
In the Supreme Court, then Associate Justice Rehnquist, writing for
a five-vote majority, described the Court’s relationship to the
proportionality rule as noncommittal: “This Court has on occasion
stated that the Eighth Amendment prohibits imposition of a sentence
that is grossly disproportionate to the severity of the crime.”357 The
351
352
353
354
355
356
357

Id. at 377.
Id.
Rummel v. Estelle, 445 U.S. 263, 264-65 (1980).
Id. at 265-66.
Id. at 266.
Id. at 267.
Id. at 271 (emphasis added).

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Court noted that the proportionality “proposition” had appeared most
frequently in the context of the Court’s recent death-penalty
jurisprudence.358 While Rummel attempted to rely on these deathpenalty cases as support for the application of the proportionality
standard in his own case, the majority cited Justice Stewart in Furman
for the proposition that the “penalty of death differs from all other
forms of criminal punishment” because it is “unique in its total
irrevocability.”359 From this language, the majority insisted that its
decisions applying the prohibition of cruel and unusual punishments
to capital cases were only of “limited assistance” in deciding the
constitutionality of the life-imprisonment punishment meted out to
Rummel.360
The Court also reasoned that the proportionality proposition had
not historically been applied to sentences of imprisonment. To
support this contention, the majority distinguished Weems by virtue of
the fact that Weems was sentenced to wear a chain and work hard
labor as part of his punishment.361 The majority concluded that the
express language regarding the proportionality principle in Weems was
tied up with the accessories of that punishment.362 From there, the
Court reasoned that for all non-death-penalty punishments, “the
length of the sentence actually imposed is purely a matter of legislative
prerogative.”363 Four justices dissented, arguing that the Eighth
Amendment prohibits punishments that are grossly disproportionate
to the crimes committed.364 In response to the dissent’s examples of
hypothetical sentences that would be unconstitutional for gross
disproportionality, the majority conceded (in a footnote) that its
ruling should not be construed as foreclosing all possibility of a
proportionality principle coming into play in “extreme cases,” such as
a legislature making “overtime parking a felony punishable by life
imprisonment.”365
Rummel represents a significant departure from the conception of
the Eighth Amendment in Weems because of its conclusion that “the
length of the sentence actually imposed is purely a matter of legislative

358
359
360
361
362
363
364
365

Id. at 272.
Id.
Id.
Id. at 273-74.
Id. at 274.
Id.
Id. at 285, 288 (Powell, J., dissenting).
Id. at 274 n.11 (majority opinion).

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prerogative.”366 The Rummel majority cited no precedent for this
proposition, relying solely on its contention that Weems did not
require the general application of the proportionality principle. The
Rummel majority supported this contention by citing a three-page
opinion in a case decided six years after Weems.367 In Badders v. United
States, the Court did not apply the doctrine of proportionality in
rejecting a defendant’s challenge to a federal statute that penalized
separate instances of “putting a letter into the post office” as distinct,
punishable offenses, as opposed to a single punishable offense of a
scheme of fraud.368 The Badders Court in its terse opinion stated that
the defendant’s contentions “need[ed] no extended answer,” and
concluded that there was no ground for declaring the punishment
unconstitutional, citing a previous case in which a punishment of
imprisonment for ten years for conspiracy to defraud was found not
cruel and unusual.369 The Rummel majority had no basis for
concluding that Badders had reopened the question of the
proportionality rule or had overruled Weems.
Three years after Rummel, a 5–4 Court majority once again changed
course on the application of the proportionality principle to noncapital punishments, as Justice Blackmun, who had joined the
majority in Rummel, switched sides, joining the majority in Solem v.
Helm.370 In Solem, Justice Powell, writing for the majority, ruled that
the cruel and unusual punishments clause prohibits all “sentences that
are disproportionate to the crime committed.”371 Similar to the facts in
Rummel, Helm had been convicted of six non-violent felonies and after
he pled guilty to uttering a “no account” check for $100, his seventh
felony conviction; Helm was sentenced to life imprisonment under
South Dakota’s recidivist statute.372 Justice Powell described the issue
presented as “whether the Eighth Amendment proscribes a life
sentence without possibility of parole for a seventh nonviolent
felony.”373
The Solem majority attempted to enshrine proportionate sentencing
as a constitutional guarantee regardless of the challenged penalty,
stating that “[t]he constitutional principle of proportionality has been
366
367
368
369
370
371
372
373

See id. at 274.
Id. (citing Badders v. United States, 240 U.S. 391, 394 (1916)).
Badders, 240 U.S. at 393-94.
Id. (citing Howard v. Fleming, 191 U.S. 126, 135 (1903)).
See Solem v. Helm, 463 U.S. 277, 304 (1983) (Burger, C.J., dissenting).
Id. at 284 (majority opinion).
Id. at 279-82.
Id. at 279.

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recognized explicitly in this Court for almost a century.”374 The Court
concluded that there was no basis for the State’s assertion that the
general principle of proportionality does not apply to felony prison
sentences, a conclusion directly at odds with its reasoning in
Rummel.375 The Solem majority addressed the use of proportionality in
capital cases and found that no distinction was drawn in those cases
from cases of imprisonment.376 The majority conceded that outside of
capital punishment, successful challenges to the proportionality of
particular sentences would likely be “exceedingly rare,” but that did
not mean that proportionality analysis would be entirely inapplicable
in noncapital cases.377 The Court stated that no sort of penalty is per se
constitutional.378 It stated that while in certain cases no term of
imprisonment would be considered disproportionate, in others a
single day in prison may be unconstitutional.379
The four-justice dissent in Solem reveals how contentious the
application of the proportionality doctrine outside of the death penalty
had quickly become. The dissenters insisted that the death penalty
alone warranted proportionality review, claiming that the controlling
law governing the case was “crystal clear” and accused the majority of
“distort[ing] the concept of proportionality of punishment by tearing
it from its moorings in capital cases.”380 The dissent asserted that the
majority had discarded “any concept of stare decisis” by not following
Rummel.381 The majority, in turn, pointed the finger at the dissenting
justices as discarding prior precedent, notably Weems, by asserting
that the principle of proportionality was only a “narrow” one.382
Thus, the Court had announced two manifestly contradictory 5–4
opinions within three years. The majority in Rummel and the
dissenters in Solem attempted to draw a clear line of demarcation
between the death penalty and non-capital sentences, even going so far
as to assert that the concept of proportionality was “moor[ed] in
capital cases,” rather than in the non-capital case of Weems.383
374

See id. at 286.
Id. at 288-90.
376 Id. at 288-89.
377 Id. at 289-90.
378 Id. at 290.
379 Id.
380 Id. at 304 (Burger, C.J., dissenting).
381 Id.
382 Id. at 288 n.13 (majority opinion).
383 See id. at 304 (Burger, C.J., dissenting); see also Rummel v. Estelle, 445 U.S.
263, 271-72 (1980).
375

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In the year after Solem, in the capital case of Pulley v. Harris, the
Court clarified that the proportionality review mandated in many
post-Furman capital sentencing statutes was distinct from a
proportionality principle of general applicability.384 Harris argued that
he was entitled to a writ of habeas corpus because the California
statute under which he had been sentenced to death did not provide
for comparative proportionality review between his crime and
sentence and the sentences imposed on other people convicted of
similar crimes.385 The Court distinguished this manner of
proportionality review from the sort conducted in Solem and in
Enmund, which concerned proportionality between the gravity of the
offense and the severity of the penalty.386 Many post-Furman capital
statutes solely inquired as to whether a given death sentence was
disproportionate when compared to the punishments imposed on
others convicted of similar crimes.387 Comparative proportionality
review, the Pulley Court ruled, was not required by the Eighth
Amendment, but was a mechanism that states could use in order to
comply with the Eighth Amendment in sentencing people to death.388
While the Pulley Court recognized a proportionality review of general
applicability, that rule was not once found by the Court to have been
violated after Solem for almost three decades, until the juvenile life
without parole case of Miller in 2012.389
The Court revisited the subject of proportionality outside of the
death penalty in Harmelin v. Michigan,390 which was distinguishable
from both Rummel and Solem, in that it involved a challenge to a
mandatory sentence of life imprisonment without possibility of parole
for a single drug possession offense, rather than a challenge to a
recidivist statute.391 Yet, the Court refused to find that Harmelin’s
sentence of life imprisonment without possibility of parole for
possession of 672 grams of cocaine was constitutionally
disproportionate. A different plurality attempted to recast the
proportionality doctrine as prohibiting “grossly disproportionate”
sentences, while rejecting the notion that mandatory life
imprisonment without possibility of parole for a single drug
384
385
386
387
388
389
390
391

See Pulley v. Harris, 465 U.S. 37, 42-44 (1984).
Id. at 39-40.
See id. at 42-43.
Id. at 44.
Id. at 50-51.
See Miller v. Alabama, 567 U.S. 460, 469-80 (2012).
501 U.S. 957, 961 (1991) (Scalia, J., delivering a separate opinion).
See id. at 961-64.

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possession offense should be considered grossly disproportionate.392 If
indeed there was a proportionality rule, its application was to be so
restricted as to make the rule meaningless.
Before the Supreme Court, Harmelin argued that his sentence was
unconstitutional because (1) it was “significantly disproportionate” to
his crime; and (2) the sentencing judge had been statutorily required
to impose it without taking into account the particularized
circumstances of the crime and the criminal.393 The Court’s
consideration of Harmelin resulted in five different opinions, each of
which discussed the Court’s roles with respect to capital and noncapital sentencing.394 A majority concurred that the individualized
sentencing doctrine applicable in capital proceedings — which
requires consideration of aggravating and mitigating factors before
imposition of a mandatory sentence — did not apply to non-capital
sentences.395 Five justices concurred that Harmelin’s claim that he was
entitled to an individualized determination that his sentence was
appropriate was supported by the Court’s “death penalty
jurisprudence,” but no such entitlement existed outside of the capital
sentencing context.396
Harmelin’s claims were ultimately unsuccessful; nevertheless, seven
justices on the Court concluded that the Constitution provided some
form of protection against disproportionate sentences in non-capital
cases. Only Justice Scalia and Chief Justice Rehnquist concluded that
the Eighth Amendment contains no proportionality guarantee
whatsoever, dismissing Solem outright as being “simply wrong.”397
Justices White, Blackmun, and Stevens dissented, pointing to the
language in Weems that it is a “precept of justice that punishment for
crime should be graduated and proportioned to [the] offense.”398 They
concluded that Michigan’s “statutorily mandated penalty of life
without possibility of parole for possession of narcotics is
unconstitutionally disproportionate.”399 Justice Marshall also dissented
on proportionality grounds, pointing out that Michigan’s statute
392 Id. at 1001, 1009 (Kennedy, J., concurring in part and concurring in the
judgment).
393 Id. at 961-62 (Scalia, J., delivering a separate opinion).
394 See Marc A. Paschke, Harmelin v. Michigan: Punishment Need Not Fit the Crime,
23 LOY. U. CHI. L. J. 273, 273 n.5 (1992).
395 See Harmelin, 501 U.S. at 994-96 (majority opinion).
396 Id. at 995.
397 Id. at 965 (Scalia, J., delivering a separate opinion).
398 Id. at 1012 (White, J., dissenting).
399 Id. at 1027.

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mandated life sentences without possibility for parole “even for firsttime drug possession offenders.”400
The now-dominant approach to proportionality in the non-capital
context was set out in a concurrence by Justice Kennedy, joined by
Justices O’Connor and Souter. Justice Kennedy attempted to reconcile
the tumultuous history of the proportionality principle by recognizing
that a “narrow proportionality principle” applies to noncapital
sentences.401 The opinion concluded that “[t]he Eighth Amendment
does not require strict proportionality between crime and sentence.
Rather, it forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.”402 In application, these concurring
justices concluded that Harmelin’s crime of drug possession “was far
more grave” than the crime at issue in Solem and concluded that the
severity of the “drug epidemic” in the United States meant Harmelin’s
sentence fell within “constitutional boundaries.”403
The concurrence was effectively a death-knell for a general
application of the proportionality principle. Doctrinally, the
concurring justices forged a partial compromise by not holding the
Court to the general applicability of a straightforward proportionality
principle as announced in Weems and Solem and yet repeatedly
alluding that the Court might find room to intervene in unnamed
“extreme” cases.404 The history since Harmelin demonstrates that the
modern Court is almost never willing to perform the function the
Court advocated in Weems of providing a meaningful check on the
legislature.405 The only successful assertion of this principle came in
2010, when the Supreme Court found that life sentences without
possibility of parole for juvenile offenders were sufficiently “extreme”
under the principle Justice Kennedy set forth in his concurrence in
Harmelin.406
Just how high that “extreme” threshold is was illustrated by an
infamous pair of cases that arose in the interim. Justice O’Connor
authored both Ewing v. California and Lockyer v. Andrade, which
400

Id. at 1028 (Marshall, J., dissenting).
Id. at 996-97 (Kennedy, J., concurring in part and concurring in the judgment).
402 Id. at 1001.
403 Id. at 1001-04.
404 See id. at 962, 985 (Scalia, J., delivering a separate opinion); id. at 998, 1001,
1007 (Kennedy, J., concurring in part and concurring in the judgment).
405 See Weems v. United States, 217 U.S. 349, 372-73 (1910).
406 See Graham v. Florida, 560 U.S. 48, 49-50, 59-60 (2010) (citing Harmelin, 501
U.S. at 997, 1000-01 (Kennedy, J., concurring in part and concurring in the
judgment)).
401

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together affirmed the constitutionality of California’s “three strikes”
sentencing laws.407 Both cases came before the Court after defendants
were sentenced to indeterminate life sentences for stealing three golf
clubs and nine videotapes, respectively.408
Lockyer in particular revealed that after Harmelin the proportionality
analysis of Solem was “questionable” and the issue of which case law
controlled was confused, as the California Court of Appeal had applied
Rummel instead of Solem in rejecting Andrade’s constitutional claim.409
After the federal district court denied Andrade’s petition for a writ of
habeas corpus, the Ninth Circuit reversed, reasoning that both Solem
and Rummel were good law and the California Court of Appeal’s
disregard for Solem was error.410 The Supreme Court reversed the
Ninth Circuit, reasoning that “through [the] thicket of Eighth
Amendment jurisprudence” the principle of “gross disproportionality”
alone was applicable to sentences for terms of years.411 The Court
stated, however, that its own cases “exhibit a lack of clarity regarding
what factors may indicate gross disproportionality,” but that such a
finding would be applicable only to an “exceedingly rare” and
“extreme” case.412 The Court did not find Andrade’s case to be so
extraordinary.413
Thus, from 1983 in Helm until the juvenile case of Graham in 2010,
not one non-capital defendant was found by the Supreme Court to
have been sentenced in violation of the Constitution for want of
proportionality. What had been considered in 1910 a “precept of
justice”414 had become relevant only to defendants facing the penalty
of death. This evolution of the proportionality doctrine now sees the
Court acting in non-capital sentencing cases only in “rare” situations
— that is, the Court embraces the numerical irrelevance of its
jurisprudence.
That irrelevance is not only numerical. In this same span of time,
the system of mass incarceration expanded into what it is today.415 The
407 See Lockyer v. Andrade, 538 U.S. 63, 66-68, 77 (2003); Ewing v. California, 538
U.S. 11, 30-31 (2003).
408 Lockyer, 538 U.S. at 66; Ewing, 538 U.S. at 28.
409 Lockyer, 538 U.S. at 68-69.
410 Id. at 69-70.
411 Id. at 72.
412 Id. at 72-73.
413 See id. at 77.
414 See Weems v. United States, 217 U.S. 349, 366-67 (1910).
415 See generally THE SENTENCING PROJECT, TRENDS IN U.S. CORRECTIONS (2017),
http://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf
(showing, among other trends, a 500% increase in incarceration over the last forty years).

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Court has gone to great lengths to tear the concept of proportionality
away from its moorings in non-capital cases — going so far as to
falsely claim its purely capital origins. The Court has distanced its
jurisprudence from the founders’ embrace of proportionality as
fundamental in the non-capital context. And it has done all this while
the prisons fill up with an unprecedented proportion of the
population. The Court has focused nearly all of its intellectual energy
on minutely regulating the rarest of punishments, the death penalty,
while ignoring not only the vast majority of those subject to such
imprisonment, but the well-recognized social problem that mass
incarceration represents.416 It has abdicated its role as the final arbiter
of due process in all but a minuscule portion of the criminal justice
system.
IV. EVOLVING STANDARDS OF DECENCY AND THE IRRELEVANCE RULE
In the Court’s death-penalty era, the Court has not only avoided
reviewing 99.9% of actual criminal sentencing activity in the United
States, it has also made itself largely irrelevant within death-penalty
jurisprudence. Beyond refusing to apply its two central Eighth
Amendment doctrines — proportionality and the evolving standards
of decency — in the non-capital context from which those doctrines
emerged, the Court has minimized its capacity to review even capital
sentences by conditioning review on the rarity of a sentencing
practice.417 In this way, the Court has cemented its own irrelevance by
proclaiming that it will interpret the Constitution only when its
decisions will protect a miniscule minority of people under the control
of the world’s largest criminal justice system.
The Court’s abnegation of responsibility in reviewing the
constitutionality of sentencing practices has occurred largely in the
name of federalism.418 Yet, as one of us has argued previously, the
416 Bipartisan efforts at reform now recognize this as well. See Matt Ford, Can
Bipartisanship End Mass Incarceration?, ATLANTIC (Feb. 25, 2015), https://www.
theatlantic.com/politics/archive/2015/02/can-bipartisanship-end-mass-incarceration/
386012.
417 The one non-capital exception it has made — extending constitutional
protections to juveniles sentenced to life in prison without possibility of parole — was
also done on the premise of rarity of that issue arising. See Graham v. Florida, 560
U.S. 48, 65-67 (2010); see also infra Subpart IV.C.
418 See, e.g., Atkins v. Virginia, 536 U.S. 304, 324 (2002) (Rehnquist, C.J.,
dissenting) (asserting that state legislatures are better suited than courts to evaluate
“the complex societal and moral considerations” that inform appropriate
punishment).

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manner in which the Court applies the evolving standards of decency
doctrine undermines the most basic tenets of federalism.419 The Court
now ascertains an evolving consensus by asking whether most states
have rejected a given penal practice.420 If so, the Court then prevents
the remainder of states from exercising said practice, disregarding the
principle of the states being free to act as laboratories, while
forestalling review until the practice has become almost negligible in
its effect.421 As such, the Court has effectively cordoned itself off from
review of nearly all criminal sentencing activity in the United States,
leaving the States to tell the Court what the Constitution means. In
focusing on rarity instead of frequency of application of punishments,
the Court ignores problems of racial inequality in capital sentencing,
particularly the alarming regularity by which death is imposed on
traditionally disadvantaged minority racial groups.422
A. The Evolving Incoherence of Evolving Standards
The evolving standards of decency doctrine has been applied to hold
various applications of the death penalty unconstitutional, but each
decision has applied to very limited subsets of the already limited
number of defendants sentenced to death. On average, each of the
Court’s death-penalty decisions applying the evolving standards of
decency doctrine before 2000 extended constitutional protections to
fewer than seven additional offenders.423 Even with the extension in
Graham in 2010 to prisoners serving life sentences without possibility
of parole for non-homicide offences committed when they were
juveniles, only 123 of the 1,612,395 prisoners in the United States at
the time (0.008% of all prisoners) received additional constitutional
419 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, 1105
(2006).
420 See, e.g., Penry v. Lynaugh, 492 U.S. 302, 331 (1989) (asserting that state
legislation is the “clearest and most reliable objective evidence of contemporary
values”).
421 See Jacobi, supra note 419, at 1106-07.
422 See McCleskey v. Kemp, 481 U.S. 279, 282, 287, 293-96, 308, 319 (1987).
423 See Thompson v. Oklahoma, 487 U.S. 815, 832-33, 838 (1988) (extending
constitutional protections to the eleven death-row inmates who were fifteen years old
or younger at the time of their offenses); Enmund v. Florida, 458 U.S. 782, 797, 818
(1982) (extending constitutional protections to the three defendants on death row
who had been convicted of felony murder without killing, intending to kill, or
attempting to kill); Coker v. Georgia, 433 U.S. 584, 596-600 (1977) (extending
constitutional protections to the five defendants on death row who had been
convicted of rape of an adult woman).

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protections from the Court’s decision.424 These numbers mean the
Court’s evolving standards of decency decisions benefit an
insignificant number of defendants within the United States criminal
justice system. The way the Court applies the doctrine requires these
numerically insignificant results and prevents the Court from
considering the constitutionality of far more frequently imposed
punishments. Before applying the doctrine to hold unconstitutional
the imposition of a given punishment on a given class of offenders, the
Court first determines if a national consensus exists against imposing
the punishment on that class. To establish this national consensus, the
Court engages in two inquiries that together serve to demonstrate the
rarity of the punishments at issue.
In the first inquiry, the Court counts the jurisdictions that have
already eliminated a given punishment for a given class of offenders.
This inquiry is meant to demonstrate that a sufficient number of states
oppose a particular mode of punishment to establish a national
consensus against it.425 Under this inquiry, the Court may also look to
historical trends and count the legislatures that have recently
eliminated a mode of punishment to determine whether a national
“trend towards abolition” of that mode of punishment exists.426 Under
this inquiry, the Court conditions its intervention on the findings that
(1) many states have already eliminated what the Court now says it
must eliminate; and (2) that in all likelihood the states that have not
eliminated the punishment would eliminate the punishment in the
near future without the Court’s input. The first inquiry thus implicitly
requires the irrelevance of the Court’s decisions.
In the second inquiry, the Court looks to the rarity with which
judges and juries impose a given punishment on a class of offenders in

424 See Graham v. Florida, 560 U.S. 48, 64 (2010) (extending constitutional
protections to the 123 juvenile offenders sentenced to life imprisonment without
possibility of parole); Roper v. Simmons, 543 U.S. 551, 578, 596 (2005) (extending
constitutional protections to the over seventy juvenile offenders on death row); Atkins
v. Virginia, 536 U.S. 304, 321 (2002) (extending constitutional protections to the
inexact number of people on death row defined as “mentally retarded” — 370 people
by the most liberal estimates); PAUL GUERINO ET AL., U.S. DEP’T OF JUSTICE, BUREAU OF
JUSTICE STATISTICS, PRISONERS IN 2010, at 1 (2012), https://www.bjs.gov/content/pub/
pdf/p10.pdf (reporting that state and federal correctional authorities had jurisdiction
over 1,612,395 prisoners at yearend 2010).
425 See Graham, 560 U.S. at 62-63; Roper, 543 U.S. at 564; Atkins, 536 U.S. at 31416; Thompson, 487 U.S. at 826-29; Enmund, 458 U.S. at 789-92; Coker, 433 U.S. at
593-94.
426 Roper, 543 U.S. at 566; see also Atkins, 536 U.S. at 314-16.

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the jurisdictions that still allow the punishment.427 This inquiry
attempts to demonstrate that, even in those states whose legislatures
condone a mode of punishment, juries choose to impose that
punishment so rarely that the Court can conclude that a national
consensus against the punishment exists. The second inquiry thus
explicitly promotes the irrelevance of the Court’s decisions.
This methodology is incoherent for at least two reasons. First, the
Court changes the ways in which it conducts the doctrine’s central
inquiries in different cases, seemingly to reach outcomes that could
not be reached if the Court were to conduct them in the same manner
in every case. Rather than a consistently applied doctrine, the only
salient feature of the Court’s evolving standards of decency decisions
is the exceptionally small percentage of prisoners that benefit from its
decisions. Curiously, the Court justifies its decisions under the
doctrine by attempting to show that the decisions will not significantly
change the practical reality of the criminal justice system. Second, on a
more general level, the evolving standards of decency doctrine
assumes something that the last forty years has proven to be false: that
society “evolves” unidirectionally towards leniency. The doctrine
provides no protection from the very real possibility — an actuality, in
fact, in the era of mass incarceration — that the public will “evolve”
towards imposing more severe penalties rather than eliminating
them.428
The two forms of incoherence are rooted in the fact that the Court
has sought to abdicate its role as the nation’s supreme constitutional
arbiter in sentencing. Under the doctrine, the Court purports to
rubber stamp the popular sentiment on which it is supposed to be
imposing constitutional constraints. In a certain sense, there is no
actual legal doctrine animating the evolving standards of decency
doctrine. The Court simply examines what the public is in the process
of deciding, and, if the Court deems that the public is on the verge of a
decision, the Court helps it take the final step. Thus, whatever
guidance the Court does give under the doctrine is largely
unnecessary. The problem of mass incarceration makes it imperative
that the Court reconsider the evolving standards of decency doctrine.
It must approach the Eighth Amendment with an eye to its
constitutional role of providing a meaningful, independent check on
427 See Thompson, 487 U.S. at 832-33; Enmund, 458 U.S. at 794-95; Coker, 433 U.S.
at 596-97.
428 See NAT’L RESEARCH COUNCIL, supra note 295, at 2-3 (explaining how
punishment policy in the United States moved towards longer sentences for lesser
offenses beginning in the 1970s).

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the power of legislatures to impose punishments that may in
application be cruel, unusual, and excessive.
B. How the Evolving Standards of Decency Doctrine Became a Numbers
Game
The phrase “evolving standards of decency” was first used by the
Supreme Court in 1958 in Trop v. Dulles when it held that the Eighth
Amendment prohibited the United States from depriving a person of
citizenship as punishment for wartime desertion.429 The Trop Court
relied on Weems for the interrelated propositions that the meaning of
the cruel and unusual punishments clause is not precise and its scope
is not static.430 Interpreting this language in Weems, the Trop Court
stated that the Eighth Amendment “must draw its meaning from the
evolving standards of decency that mark the progress of a maturing
society.”431
The Trop Court did not explain how a court might determine that
society’s standards of decency have evolved. The Court simply
declared that the punishment of denationalization was “offensive to
cardinal principles for which the Constitution stands,” pointing out
that “[t]he civilized nations of the world [were] in virtual unanimity
that statelessness [was] not to be imposed as punishment for
crime.”432 The Court did not rely on the frequency or rarity with
which the punishment of denationalization was imposed, and it did
not attempt to establish that a national consensus against the
punishment existed.
Similarly, when the Court struck down all death-penalty schemes
then in use in Furman v. Georgia, the Court did not conclude that a
national consensus against the punishment existed or claim that its
decision was based on the views of the public.433 Justice Brennan
referenced public sentiment and debate, as well as the “national
conscience” regarding the death penalty, to demonstrate that the death
penalty was unique,434 while Justice Marshall suggested that a
punishment might be invalid if “popular sentiment abhor[red] it.”435
Justice White separately mentioned the infrequency with which the
429
430
431
432
433
434
435

Trop v. Dulles, 356 U.S. 86, 101-04 (1958).
Id. at 100-01.
Id. at 101.
Id. at 102.
See Furman v. Georgia, 408 U.S. 238, 242 (1972) (Douglas, J., concurring).
See id. at 299 (Brennan, J., concurring).
Id. at 332 (Marshall, J., concurring).

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death penalty was imposed by juries, reasoning that the legislative
judgments authorizing the death penalty “los[t] [their] force,” as
juries refused to impose it.436 But Justice Brennan explicitly rejected
the notion that the Court’s decision in Furman should depend on
whether a national consensus against the punishment existed:
If the judicial conclusion that a punishment is cruel and
unusual depended upon virtually unanimous condemnation of
the penalty at issue, then, like no other constitutional
provision, the Clause’s only function would be to legitimize
advances already made by the other departments and opinions
already the conventional wisdom. We know that the Framers
did not envision so narrow a role for this basic guaranty of
human rights.437
It was the dissenting justices in Furman who more directly broached
the question of a national consensus. They argued that there were no
“obvious indications that capital punishment offend[ed] the
conscience of society” to such a degree that the Court should abandon
its practice of deferring to legislative judgment.438 The dissent also
pointed out that the Court had never before held a punishment
unconstitutional on the basis of a shift in accepted social values, and
the majority had not suggested “judicially manageable criteria for
measuring such a shift.”439
Due to the lack of a majority voice in Furman, critics had reason to
believe that the decision was “very vulnerable” precedent.440 Within a
few months after the decision, activists were campaigning for
reinstatement of the death penalty in every state.441 Within two years,
thirty-five states had enacted new capital statutes, as a pro-deathpenalty movement emerged from a coalition of voices espousing “law
and order,” “states’ rights,” and “culture-war” conservatism.442 Four
years later, in Gregg v. Georgia, the reworked death-penalty statutes
were affirmed, effectively reviving the death penalty as a constitutional
punishment for the crime of murder with sufficient aggravating
circumstances.
A three-vote plurality announcing the judgment of the Court in
436
437
438
439
440
441
442

See id. at 314 (White, J., concurring).
Id. at 268 (Brennan, J., concurring) (quotations and brackets omitted).
Id. at 385 (Burger, C.J., dissenting).
Id. at 383.
See Lesley Oeisner, Banned — but for How Long?, N.Y. TIMES, July 2, 1972, at E1.
GARLAND, supra note 308, at 232.
Id. at 233-34.

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Gregg established an entirely new regime which the Court has since
applied to its capital-punishment analysis.443 In much the same way
that the Gregg Court imported the proportionality doctrine from the
non-capital context to animate its death-penalty jurisprudence, it also
applied the evolving standards of decency doctrine to explain the
constitutionality of the death penalty, stating that “an assessment of
contemporary values concerning the infliction of a challenged
sanction is relevant to the application of the Eighth Amendment.”444
This assessment, the Court noted, must not be subjective, but must be
based on “objective indicia that reflect the public attitude toward a
given sanction.”445 It claimed that legislative enactments provided “the
most marked indication of society’s endorsement of the death
penalty,”446 and that jury verdicts were also a reliable source that
could be used to determine a national consensus.447
The Gregg Court concluded that, according to these two “objective
indicia,” no standard had evolved against imposition of the death
penalty on persons convicted of murder with sufficient aggravating
factors. In Furman, the Court had perhaps underestimated the nation’s
strong support for the death penalty, and much of the nation
responded clearly that it still intended to sentence people to death.
Thus, the Court’s first decision applying a numbers-based approach to
the evolving standards of decency doctrine legitimated a popular
movement towards punishing defendants more severely. While the
decision in Furman might have been unpopular, the Court in Gregg
introduced a construction of the Eighth Amendment that replaced
meaningful judicial review with a simple counting mechanism, a
judicial innovation that Justice Brennan had decried as inconsistent
with the Framers’ constitutional design four years earlier in Furman.448
This innovation has since been among the Court’s most contentious
doctrinal developments, as not a single decision applying the doctrine
has received unanimous support. Since Gregg, the allegedly objective
counting mechanism has been revealed as anything but —
inconsistent in approach and unpredictable in outcome.

443

See Gregg v. Georgia, 428 U.S. 153, 179-87 (1976) (plurality opinion).
Id. at 172-73.
445 Id. at 173.
446 Id. at 179.
447 Id. at 181-82. The Court found that juries had acted in accordance with postFurman legislative enactments, sentencing more than 460 people to death between the
time of Furman and the end of March 1976. Id. at 182.
448 See Furman v. Georgia, 408 U.S. 238, 268 (1972) (Brennan, J., concurring).
444

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C. The Inconsistency of the “Objective” Evolving Standards of Decency
Doctrine Methods
In applying the evolving standards of decency doctrine, the Court
subtly changes the terms on which it conducts its statistical inquiries
from case to case. In certain cases, the Court relies more heavily on
non-numerical principles, such as culpability and proportionality, to
justify its shifting use of statistics. A brief review of the major
developments in the field reveals as many methods of counting states
to determine an evolving standard as there are cases. The Court has
repeatedly had to contort its own jurisprudence to establish or reject
an evolving standards of decency doctrine for application of the death
penalty to a particular group, but such judicial acrobatics achieve little
in terms of affecting the criminal justice system: the only consistent
feature in all its decisions is that the Court always attempts to justify
its evolving standards of decency decisions by demonstrating that a
statistically insignificant number of prisoners will benefit from its
rulings.
In its first foray into the numbers game, in Coker v. Georgia the
Court stressed a near-unanimity among legislatures and juries to show
an evolving consensus against the punishment of death for the crime
of rape of an adult woman.449 First, it pointed out that at no time in
the previous fifty years had a majority of states authorized death as a
punishment for rape.450 At the time of Furman, five years earlier,
sixteen states and the federal government had authorized the death
penalty as punishment for rape.451 After Furman invalidated the deathpenalty statutes then in existence, only three states subsequently
provided the death penalty as punishment for rape of an adult
woman.452 Among those three states, only Georgia’s law was still valid
at the time of the Court’s decision in Coker.453 With Georgia’s law the
last left standing, the Court reasoned that the nation’s current
judgment in the form of legislative enactments weighed heavily on the
side of rejecting the punishment.454 The Court did not acknowledge
that the circumstances were unusual, with states not having known
until the year before, when Gregg was decided, whether their capital
punishment schemes would be upheld at all. As such, the Court did
449
450
451
452
453
454

Coker v. Georgia, 433 U.S. 584, 595-97 (1977).
Id. at 593.
Id.
Id. at 594.
Id. at 594-96.
Id. at 596.

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not consider whether those states were actually evincing a consensus
against executing those convicted of rape or simply waiting to see if it
was worth the time to develop any kind of comprehensive capitalpunishment scheme.
The Court was forced to play a more nuanced numbers game in
Enmund v. Florida to overcome the lack of unanimity on the question
of whether it was constitutional to apply the death penalty to those
convicted of felony murder who did not kill, attempt to kill, or intend
to kill.455 The Court carved out a category of offenders to whom
protections would apply, despite apparent legislative disagreement,
ignoring the fact that any class of offenders might be made small
enough if the Court were simply willing to carve it up in enough ways.
Rather than considering all of the states which allowed execution for
some sort of indirect involvement in a killing, the Enmund Court
emphasized that only eight jurisdictions authorized the death penalty
for participation in a robbery in which another robber takes life.456 It
treated that separately from the nine additional states in which a
defendant could be executed for felony murder if sufficient
aggravating factors outweighed mitigating circumstances.457 Even
when separated in this way, opposition to the punishment was far
from unanimous. Thus, the Court emphasized that none of the newly
enacted death-penalty statutes authorized the punishment for
defendants who did not intend to kill,458 a concept that would be
developed in the Court’s equally dubious focus on recency,459 but that
once again ignored the potentially endogenous effect of its own
decision in Furman. The Court also contrasted the six actual exercises
of executions for “nontriggermen” with the seventy-two people who
had been executed for rape between 1955 at the time of the Court’s
decision in Coker.460 The Coker Court, however, had not mentioned,
let alone relied upon, the fact that as many as seventy-two people had
been executed for rape between 1955 and its decision in 1977.
In analyzing jury behavior, the Enmund Court found even more
ways of dividing the categories of application to make them seem
small, saying that of 739 death-row inmates for whom sufficient data
was available, only forty-one did not participate in the fatal assault of

455
456
457
458
459
460

See Enmund v. Florida, 458 U.S. 782, 797 (1982).
Id. at 789.
Id. at 791.
Id. at 792-93.
See infra Subpart IV.D.
Enmund, 458 U.S. at 794-95.

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the victim.461 Only sixteen of these forty-one were not physically
present when the fatal assault was committed.462 Only three of these
sixteen, one of whom was the petitioner, were sentenced to die absent
a finding that they had somehow intentionally participated in a
scheme designed to kill the victim.463 In Florida specifically, the Court
found that Enmund was the sole death-row inmate who had been
found neither to have been the triggerman nor to have had an intent to
kill.464 Thus, by narrowing the category of application that it deemed
relevant in the case, the Court drastically narrowed the relevance of its
own determination.
This approach was not enough to hold unconstitutional the
imposition of the death penalty on defendants who were under the age
of sixteen at the time of their offense. In Thompson v. Oklahoma, the
Court also engaged in selective incorporation of non-punitive
legislation, international norms, and execution statistics.465 The
Thompson Court first discussed legislation that did not pertain to the
death penalty, considering various statutes that defined persons under
sixteen as children or minors who were treated differently under the
law in such matters as voting or serving on a jury.466 In turning to
legislation concerning capital punishment, the Court selectively
counted legislation, noting that of the states which then authorized the
death penalty, nineteen provided no minimum age for its
imposition.467 Of the eighteen states that defined a minimum age,
however, all required the defendant to have attained the age of sixteen
at the time of his or her capital offense to be eligible for the death
penalty.468
The Court then stepped entirely outside its own methodology,
surveying professional organizations, such as the American Law
Institute, and practices of certain countries in the Western European
tradition and the Soviet Union — all of which had condemned the
imposition of the death penalty on juveniles.469 Data from these
organizations and countries supported the conclusion that executing a
person who was under sixteen at the time of his or her offense “would
461
462
463
464
465
466
467
468
469

Id. at 795.
Id.
Id.
Id.
Thompson v. Oklahoma, 487 U.S. 815, 821-38 (1988).
See id. at 823-25.
Id. at 826-27.
Id. at 829.
Id. at 830-31.

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offend civilized standards of decency.”470 In considering the “behavior
of juries,” the Court cited recent scholarship concerning executions,
rather than jury decisions, finding that, during the twentieth century,
eighteen to twenty people had been executed for crimes committed
when they were under the age of sixteen.471 The Court then cited
statistics from the Department of Justice indicating that between 1982
and 1986, of the 1,393 people sentenced to death, only five were less
than sixteen years old at the time of their qualifying offense.472 The
Thompson Court did not include any facts pertaining to jury decisions
before 1982 in its opinion.
In twin opinions in 1989, the Court entrenched its reliance on
counting states in ascertaining an evolving consensus — although
changing once again how it calculated such consensus. The Court
ruled that the Eighth Amendment did not mandate a categorical
exemption from the death penalty for the “mentally retarded” in Penry
v. Lynaugh,473 and declined to extend protections to sixteen- and
seventeen-year-old offenders sentenced to death in Stanford v.
Kentucky.474 In both cases, the Court looked to state legislation and
found inadequate numbers to show a national consensus. Only two
States had enacted laws banning the imposition of the death penalty
on a “mentally retarded” person convicted of a capital offense,475
which the court deemed inadequate “even when added to the 14 States
that have rejected capital punishment completely.”476 In subsequent
cases, the Court seesawed as to whether non-capital punishment states
were relevant, and this consideration frequently became a determining
factor.477 Similarly, the Court found no national consensus against
executing those aged sixteen or seventeen, since a majority of States
permitted imposing the death penalty for crimes committed at age
sixteen and above.478 But the Court was forced to develop a new
analysis for jury determinations, rejecting the significance of the
extremely low number of juries that had imposed the death sentence
on juveniles because “a far smaller percentage of capital crimes [were]
committed by persons under 18 than over 18, [and thus] the
470
471
472
473
474
475
476
477
478

Id.
Id. at 831-32.
Id. at 832-33.
Penry v. Lynaugh, 492 U.S. 302, 340 (1989).
Stanford v. Kentucky, 492 U.S. 361, 380 (1989).
Penry, 492 U.S. at 334.
Id.
See infra Subpart IV.D.
Stanford, 492 U.S. at 371.

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discrepancy in treatment [was] much less than might seem.”479 The
Court majority justified complete reliance on its numbers-based
approach because it claimed that such a method avoided the Court
imposing its “own conceptions of decency” on the public,480 even
though this proportional analysis of jury determinations was entirely
novel and produced quite different numbers than the Court’s previous
raw totals.
Both Penry and Stanford were overruled within sixteen years by
Atkins v. Virginia481 and Roper v. Simmons,482 respectively, when the
Court relied on new types of evidence, including proposed bills, the
direction of change, execution statistics, and even international
opinions. Although the Atkins Court reiterated its commitment to
conducting an inquiry into evolving standards based upon “objective
factors,” those factors were substantially less numerous than in prior
cases.483 The Court claimed that thirty states prohibited the practice.484
Not only was this far from Coker’s unanimity standard, but the Atkins
Court was only able to claim a majority by including those states that
prohibited the death penalty entirely, rather than only looking to
those states that had addressed the question specifically of whether it
was wrong to execute “mentally retarded” offenders.485 To buttress its
conclusion, the Court noted that at least one house of the legislatures
of three additional states had adopted bills prohibiting the practice.486
This was the first time the Court had relied on the adoption of a bill,
rather than an enactment of law, as a factor in its analysis. The
propriety of such consideration is dubious, as typically fewer than 5%
of bills introduced in the U.S. Congress each year become law.487
479

Id. at 374.
See id. at 369.
481 See Atkins v. Virginia, 536 U.S. 304, 306-16, 321 (2002).
482 543 U.S. 551, 565-66, 574-79 (2005).
483 Compare Atkins, 536 U.S. at 312-16 (considering only legislative action as an
objective factor as it is the “clearest and most reliable objective evidence”), with
Thompson v. Oklahoma, 487 U.S. 815, 821-38 (1988) (considering multiple objective
factors such as domestic legislation, international law, jury determinations, and
juvenile culpability).
484 But see Atkins, 536 U.S. at 342 (Scalia, J., dissenting) (claiming that the majority
reached a national consensus by dividing the eighteen states that prohibit capital
punishment for the mentally retarded by the thirty-eight states that allow capital
punishment at all).
485 See id. at 322 (Rehnquist, C.J., dissenting) (criticizing this as merely a post hoc
rationalization for the majority’s subjectively preferred result).
486 See id. at 315 (majority opinion).
487 Timeline, LEGIS. EXPLORER, http://legex.org/timeline/index.html#legislation=bills&
chamber=all&party=all&committee=all&majority=all&gender=all&state=all&outcomes=
480

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In light of these weaker numbers, the Court framed its inquiry as
one focused on legislative developments since Penry,488 stating for the
first time that the number of jurisdictions that had passed legislation
was not as significant as “the consistency of the direction of change.”489
The Court found it significant that no State had passed legislation
authorizing the execution of the “mentally retarded” since Penry,490
without mentioning what circumstances would be expected to prompt
such change. This became even more important when revisiting the
question of executing juveniles. The Roper Court described the
evidence of a national consensus against the death penalty for
juveniles as similar to the evidence held sufficient to demonstrate a
national consensus in Atkins,491 but conceded that the rate of
legislative abolition was demonstrably slower. Only five states had
eliminated the death penalty for juveniles (one by judicial decision) in
the wake of Stanford, whereas sixteen had eliminated it for the
“mentally retarded” after Penry.492 The Court dealt with this by
reiterating its Atkins claim that the number of States was not as
significant as the “consistency of direction of change.”493
Notably, for the first time in its evolving standards analysis, the
majority in Atkins did not include information about jury
determinations in its decision. Instead, the Court cited New
Hampshire and New Jersey as states that continued to authorize
executions of the “mentally retarded” yet had not carried out such an
execution in decades.494 “Thus, there [was] little need to pursue
legislation barring the execution of the mentally retarded in those
States.”495 The Court then turned to the number of executions that
had taken place since Penry, and found that only five offenders with a
known IQ of less than seventy had been executed in that period.496
Justice Scalia in his dissent questioned these numbers, claiming that
“12 States executed 35 allegedly mentally retarded offenders during
all&topics=all&view=outcomes&zoomed=false&graphbar=true&relative=false (last visited
Feb. 4, 2018).
488 Atkins, 536 U.S. at 312. The Court found that sixteen states had prohibited the
execution of the “mentally retarded” in the wake of Penry, adding to the two states
that had already prohibited the practice. See id. at 314-15.
489 Id. at 315 (emphasis added).
490 Id. at 315-16.
491 Roper v. Simmons, 543 U.S. 551, 564 (2005).
492 Id. at 565.
493 Id. at 565-66.
494 Atkins, 536 U.S. at 316.
495 Id.
496 Id.

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the period from 1984–2000” and that “10% of death-row inmates”
were “mentally retarded.”497 With 3,557 total death-row inmates in
2002,498 Scalia’s claim would bring the number up to 355 “mentally
retarded” death-row inmates, making this dispute over so-called
objective numbers vary by more than a factor of ten. Meanwhile, the
question of how to determine whether an inmate is “mentally
retarded” continues to plague the courts.499
Roper and Atkins both also challenged the language of a plurality of
the Court in Stanford that the Court must not bring its own
independent judgment to bear on the acceptability of the juvenile
death penalty,500 offering assessments of personal culpability and its
relationship to the deterrent effect of the death penalty.501 In bringing
its own judgment to bear on the question, the Court relied heavily on
scientific evidence distinguishing juvenile behavior from that of adults
and its view of an international consensus against the punishment.502
Thus, the Court introduced an entirely new set of factors to count in
its analysis.503 Additionally, it found that the “objective indicia of
consensus” itself provided sufficient evidence that juveniles were
categorically less criminal,504 fusing the national-consensus inquiry
with the classic penological concept of culpability, and thus blurring
the line between allegedly objective and admittedly subjective criteria.
Finally, the Court used rarity of application to overcome a majority
of state legislatures seemingly endorsing a practice, while limiting the
jurisdictions it was willing to analyze in its numerical characterization
and embracing once again its own independent judgment. In Graham
v. Florida, the Court found unconstitutional a non-capital punishment
for the first time since instituting its numbers-based approach to the
doctrine, holding that life-without-parole sentences for juveniles
convicted of non-homicide offenses were unconstitutional.505 This
development may seem like a reversal of the Court’s abnegation of
497

Id. at 346.
Size of Death Row by Year — (1968 – present), DEATH PENALTY INFO. CTR.,
https://deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year#year
(last visited Mar. 15, 2018).
499 See, e.g., Hall v. Florida, 134 S. Ct. 1986, 1998 (2014) (prohibiting a strict IQ
score cut off in making the determination).
500 See Roper v. Simmons, 543 U.S. 551, 562-64 (2005); see also Atkins, 536 U.S. at 313.
501 Roper, 543 U.S. at 563; Atkins, 536 U.S. at 320.
502 See Roper, 543 U.S. at 567-78.
503 Justice Scalia awarded this “the Prize for the Court’s Most Feeble Effort to
fabricate ‘national consensus.’” Atkins, 536 U.S. at 347 (Scalia, J., dissenting).
504 Roper, 543 U.S. at 567.
505 Graham v. Florida, 560 U.S. 48, 82 (2010).
498

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responsibility in determining how the Eighth Amendment applies to
non-death-penalty defendants — the overwhelming majority of
prisoners. Nevertheless, a closer look reveals that Graham preserved
the most salient feature of the Court’s numbers-based approach by
hinging constitutional protection on the extremely small number of
prisoners benefitted.
The Graham Court paid lip service to state legislation as the clearest
and most reliable objective evidence of contemporary standards of
decency.506 Nonetheless, despite thirty-seven State legislatures, the
District of Columbia, and the federal government’s continued
authorization of life without parole sentences for juveniles convicted
of non-homicide offenses507 the Court found a consensus because
“[t]here are measures of consensus other than legislation.”508 Similar
to the Enmund Court’s idea of splitting categories, the Court split
States by frequency of application of capital punishment, rather than
by different legislative rules. The Court found significant that of the
123 juvenile non-homicide offenders serving life without parole
sentences, seventy-seven were serving sentences imposed in Florida,
and the other forty-six were imprisoned in just ten other states.509
With the weight of legislative determinations clearly against it, the
Graham Court emphasized the rarity with which the sentences were
imposed in finding that the evolving standards of decency doctrine
applied.510 It used a different kind of proportionality analysis, here
downplaying the number of juveniles sentenced to life imprisonment
without possibility of parole because each was, by definition, likely to
remain in prison for decades. Therefore, the actual number of
prisoners currently serving the sentence constituted an accumulation
of prisoners over many years, demonstrating how rarely the sentence
had been imposed nationally.511 It acknowledged that, in terms of
absolute numbers, the sentences were more common than in other
cases in which the Court had found a national consensus against a
punishment. Yet, it used another kind of proportionality analysis to
mitigate the significance of this finding, noting that the far greater
number of offenses that made defendants eligible for life without
parole sentences (as opposed to death sentences) meant that the actual
numbers of those sentenced to the punishment were “as rare as other
506
507
508
509
510
511

Id. at 62.
Id.
Id.
Id. at 64.
Id. at 65.
See id.

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sentencing practices found to be cruel and unusual.”512
Overall, then, even while continuing to insist that counting states is
an objective endeavor, the Court has quietly changed the standard
from unanimity to (1) a bare majority; (2) a majority reached only
when including additional categories; (3) less than a majority but
dividing up the numbers in favor of a practice so as to undercut the
significance of that majority; (4) emphasizing instead the direction of
change; and (5) emphasizing the most recent instances of that change.
It has also varied what factors go into assessing the consensus among
the states. These include legislation passed, legislation considered,
jury determinations, the number of actual executions completed, the
views of various international actors, and the justices’ own views of
culpability, including by relying on scholarly work and other
indications of the views of external actors.
The Court’s wildly inconsistent application of its so-called objective
factors has only one constant element: in each of these cases, the
Court buttressed its variously dubious numbers by pointing to the
irrelevance of its own determinations in terms of the number of people
affected by its rulings:

512

-

In Coker, since Georgia’s juries were by then the sole
set under consideration,513 of the sixty-three rape
convictions since 1973, only six saw the jury impose a
death sentence.514 As one of those sentences had
previously been set aside by the Georgia Supreme
Court, only five people were on death row for the
crime of rape of an adult woman at the time of the
decision in Coker.515 The Coker Court, then, granted
additional constitutional protections to a total of five
people,516 0.002% of the U.S. prison population at the
time.517

-

In Enmund, after massively narrowing the scope of
which applications the Court would consider relevant,
the Court justified its ruling in part because it was

Id. at 65-66.
See Coker v. Georgia, 433 U.S. 584, 595-96 (1977).
514 Id.
515 Id. at 596-97.
516 See id.
517 See BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, STATE AND FEDERAL
PRISONERS, 1925–85, at 2 (1986), https://www.bjs.gov/content/pub/pdf/sfp2585.pdf
(reporting the total prison population to be 285,456 in 1977).
513

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granting additional constitutional protections to only
three people, 0.0008% of the United States prison
population at the time of the Court’s decision.518
-

In Thompson, the Court looked only at post-1982 data,
of which 0.4% of the persons sentenced to death
between 1982 and 1986 were under sixteen years old
at the time of their offense.519 After Furman, eleven
people were sentenced to death for crimes committed
when they were fifteen years old as of 1988.520 Thus,
Thompson extended constitutional protections to no
more than eleven of the 627,402 people in prison in
1988, just 0.002% of the total prison population.521

-

In Atkins, the Court acknowledged that the exact
number of prisoners who should be categorized as
“mentally retarded” was ambiguous;522 but even taking
Justice Scalia’s more liberal estimates, approximately
355 people of the 3,697 people on death row in 2002
were “mentally retarded.”523 So Atkins could be
liberally construed as extending constitutional
protections to 355 of the 2,033,022 people in prison in
2002, still less than 0.02% of the total prison
population.524

-

In Roper, at the time of the Court’s decision, seventyone death sentences for juvenile offenders still
remained in force.525 Thus, the Court’s decision
extended additional constitutional protections to

518 See Enmund v. Florida, 458 U.S. 782, 796 (1982); LANGAN ET AL., supra note
201, at 13 (showing the total prison population to be 385,343 in 1982).
519 See Thompson v. Oklahoma, 487 U.S. 815, 832-33 (1988).
520 See VICTOR L. STREIB, THE JUVENILE DEATH PENALTY TODAY 9 (2005),
https://www.deathpenaltyinfo.org/files/pdf/juvdeathstreib.pdf.
521 BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PRISONERS IN 1988, at 2
(1989), https://www.bjs.gov/content/pub/pdf/p88.pdf.
522 Atkins v. Virginia, 536 U.S. 304, 317 (2002).
523 See id. at 347 (Scalia, J., dissenting) (writing that 10% of death-row inmates
were “mentally retarded” in 2002); DEATH PENALTY INFO. CTR., THE DEATH PENALTY IN
2002, at 1 (2002), https://deathpenaltyinfo.org/files/pdf/yrendrpt02.pdf (reporting that
there were 3,697 people on death row in 2002).
524 PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE
STATISTICS BULLETIN: PRISONERS IN 2003, at 2 (2004), https://www.bjs.gov/content/pub/
pdf/p03.pdf.
525 STREIB, supra note 520, at 3.

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seventy-one of the 2,193,798 prisoners in the United
States, 0.003% of the total prison population.526
-

In Graham, the Court granted additional constitutional
protections to 123 of the 1,612,395 prisoners in the
United States as of 2010, 0.008% of all prisoners.527

Of course, these numbers cannot be taken on face value: they do not
tell us how many people would have been sentenced to execution but
for each determination. It is the Court itself that stresses that in each
case, the nation’s legislatures, and sometimes its juries, have already
demonstrated virtually unanimous rejection of the punishment even
without the Court’s input. Thus, by counting states, the Court is doing
two things: first, it is claiming that it is avoiding subjectivity, which is
belied by the various ways in which it counts; second, it is asserting
the irrelevance of its own decisions.
D. The Implicit and Explicit Irrelevance of the Evolving Standards of
Decency Doctrine
Throughout the shifting terms on which the Court has applied the
evolving standards of decency doctrine — from unanimity to finding a
consensus against a punishment authorized by thirty-seven States, the
District of Columbia, and the federal government528 and from focusing
on jury verdicts to focusing on number of executions — the Court has
nevertheless never wavered from the premise that because a
punishment is extremely unlikely to be carried out, the punishment is
therefore unconstitutional. Most recently, the Graham Court suggested
that the rarity with which a punishment is inflicted on a certain class of
defendants is sufficient under the evolving standards doctrine for the
Court to conclude that a national consensus against a particular mode
of punishment exists.529 But, if the rarity with which a punishment is
imposed were indeed the only criterion used by the Court to declare a
punishment unconstitutional, then, as Justice Scalia pointed out in his
dissent in Thompson, the Court might by that logic hold
unconstitutional the death penalty for women.530 Presumably, if the
526 PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE
STATISTICS BULLETIN: PRISONERS IN 2005, at 2 (2007), https://www.bjs.gov/content/
pub/pdf/p05.pdf.
527 Graham v. Florida, 560 U.S. 48, 64 (2010); GUERINO ET AL., supra note 424, at 2.
528 Graham, 560 U.S. at 97 (Thomas, J., dissenting).
529 Id. at 67 (majority opinion).
530 Thompson v. Oklahoma, 487 U.S. 815, 871 (Scalia, J., dissenting).

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relevant statistical analysis were conducted, a standalone rarity
principle could also justify such patently nonsensical constitutional
prohibitions as the execution of the left-handed, of people born in
American Samoa, or of people who had parented septuplets. The Court
has never, and likely never will, hold unconstitutional the imposition
of a punishment on a class of offenders solely on the grounds of the
rarity with which the punishment is imposed on that class.
Numbers alone do not and cannot explain why the Court has
chosen to hold unconstitutional the modes of punishment that it has.
Other concerns, such as culpability and proportionality, have subtly
moved the Court to decide the cases it has decided, even though the
Court represents itself as basing its decisions on numerical statistics.
Political and moral concerns have been shown to animate the Court’s
decision making in almost every area of law,531 so it is unsurprising
that traditional penological considerations can be seen operating on
the sidelines of the Court’s evolving-standards opinions. In Coker, the
plurality noted that rape is morally distinguishable from murder in
that, while unquestionably serious, it does not necessarily involve the
deliberate taking of human life.532 In Enmund, the Court framed its
inquiry as being focused on the defendant’s “culpability,” distinct as it
was from the culpability of robbers who actually did take human
life.533 In Thompson, the Court concluded that “indicators of
contemporary standards of decency confirm our judgment that such a
young person is not capable of acting with the degree of culpability
that can justify the ultimate penalty.”534 The proportionality and
culpability touchstones were of course expanded in Atkins, Roper, and
Graham.
In each case where the Court acknowledges the significance of these
concerns, each narrow majority is chastised by dissenting justices for
imposing its own judgment on the acceptability of the questioned
mode of punishment.535 The Court’s continued insistence that its
531 See Matthew Sag, Tonja Jacobi & Maxim Sytch, Ideology and Exceptionalism in
Intellectual Property — an Empirical Study, 97 CALIF. L. REV. 801, 804-12 (2009)
(summarizing the empirical judicial politics literature showing the predictability of
Supreme Court decision making in a comprehensive set of studies).
532 Coker v. Georgia, 433 U.S. 584, 598 (1977).
533 Enmund v. Florida, 458 U.S. 782, 798 (1988).
534 Thompson, 487 U.S. at 823.
535 See Graham v. Florida, 560 U.S. 48, 97 (2010) (Thomas, J., dissenting)
(characterizing the majority’s opinion as an application of its moral judgment); Roper
v. Simmons, 543 U.S. 551, 588 (2005) (O’Connor, J., dissenting) (“[T]he rule decreed
by the Court rests, ultimately, on its independent moral judgment that death is a
disproportionately severe punishment for any 17-year-old offender.”); Atkins v.

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Eighth Amendment decisions be based on numbers — as opposed to
generally applicable principles such as proportionality —
unnecessarily hamstrings the Court’s capacity to interpret the Eighth
Amendment and leads to untenable results. Chief Justice Roberts’
dissent in Miller v. Alabama illustrates the illogic of the numbers-based
approach.
In Miller, the majority did not consider the rarity of legislative
enactments or jury verdicts as the primary grounds for determining
that mandatory sentences of life without possibility of parole for
juveniles violate the Eighth Amendment.536 Instead, the Miller
majority cited Roper for the proposition that the Eighth Amendment
guarantees individuals the right not to be subject to excessive
sanctions.537 That right, the Court explained, flows from the basic
“precept of justice,” announced in Weems, “that punishment for crime
should be graduated and proportioned” to both the offender and the
offense.538 The “concept of proportionality,” the Miller Court stated, is
“central to the Eighth Amendment.”539 The Miller Court referenced
evolving standards of decency not for the proposition that objective
indicia must guide the Court’s analysis, but for the proposition that
the concept of proportionality should not be viewed through a
“historical prism.”540 The Court then explained that mandatory
sentences of life without possibility of parole for juveniles fail to take
into account characteristics of juvenile offenders that bear on
considerations of proportionality.541 The majority addressed the
objective indicia of a national consensus, but did so principally by way
of a response to the dissenting opinion of Chief Justice Roberts that
sufficient objective indicia of a national consensus against the

Virginia, 536 U.S. 304, 322 (2002) (Rehnquist, C.J., dissenting) (insisting that only
the “objective” factors should be considered); Thompson, 487 U.S. at 873 (Scalia, J.,
dissenting) (characterizing the majority’s opinion as being based on “the perceptions
of decency” of “a majority of the small and unrepresentative segment of our society
that sits on this Court”); Enmund, 458 U.S. at 826 n.42 (O’Connor, J., dissenting)
(characterizing the majority’s conclusions concerning the blameworthiness of the
defendant’s conduct as “legislative judgments” that are “uniquely suited to legislative
resolution”); Coker, 433 U.S. at 604 (Burger, C.J., dissenting) (stating that “the Court
has overstepped the bounds of proper constitutional adjudication by substituting its
policy judgment for that of the state legislature”).
536 See Miller v. Alabama, 567 U.S. 460, 468-74 (2012).
537 Id. at 469.
538 Id.
539 Id.
540 Id.
541 See id. at 468-74.

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punishment did not exist.542
In his dissent, writing for the Court’s four conservative justices,
Chief Justice Roberts argued that the frequency with which
jurisdictions imposed the punishment of life without possibility of
parole on juveniles — 2,000 prisoners were currently serving the
sentence — demonstrated that the punishment was not “unusual,”
and thus the Court’s Eighth Amendment analysis should have stopped
there.543 He stressed that the Court should be guided solely by
objective indicia, lest the Court impose its “own subjective values or
beliefs.”544 Chief Justice Roberts, who had joined the majority in
Graham, explained that Graham was distinguishable because the
punishments there at issue were “exceedingly rare.”545
Chief Justice Roberts’ dissent in Miller, as well as the bulk of the
Court’s evolving standards of decency precedent, conditions the
Court’s ability to interpret and apply the Eighth Amendment on the
fact that the punishments at issue are “exceedingly rare” out of respect
for federalism. But, such insistence on an Eighth Amendment based on
numbers is inconsistent with a federalist system in which the
judiciary, as a co-equal branch of government, places meaningful
checks on legislatures through its interpretation and application of the
Constitution.546 As one of us has previously pointed out, the numbersbased evolving standards of decency doctrine destroys the states’
positions as separate sovereigns, as the doctrine is used to force States
to bend to the will of other states.547
Both prongs of the evolving-national-consensus inquiry make the
Court’s role as the nation’s supreme constitutional arbiter almost
entirely irrelevant, both implicitly and explicitly. The first inquiry,
under which the Court seeks to demonstrate that most of the nation’s
legislatures have already eliminated a mode of punishment, implicitly
suggests that the Court’s decisions are irrelevant.548 Under this
inquiry, if most of the nation’s legislatures reject a mode of
punishment, or if the Court decides that there is a “trend towards
abolition,” the Court may then conclude that there is an evolving
542

See id. at 482-86, 483 n.10.
Id. at 494 (Roberts, C.J., dissenting).
544 Id.
545 Id. at 496.
546 See Jacobi, supra note 419, at 1105-06 (arguing that counting states undermines
federalism, both in terms of the federal-state balance and the freedom of each state to
act free from regulation by another state).
547 Id. at 1107.
548 See Coker v. Georgia, 433 U.S. 584, 593 (1977).
543

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standard of decency against the punishment. The Court’s variation in
counting legislatures in Atkins and Roper reveals the underlying logic
of this inquiry. In Atkins, the Court focused not so much on the total
number of States that prohibited the execution of the mentally ill, but
on “the consistency of the direction of change.”549 The fact that a
number of states had recently passed legislation prohibiting the
punishment, while no state had passed legislation authorizing it,
provided “powerful evidence” that society was evolving.550 The Court’s
reasoning here is founded upon a view of history as inevitably
progressive. Because States had evolved against the execution of the
“mentally retarded,” the Court could then conclude that these States
would not in the future evolve in the other direction, and that
additional States in the future would soon join these States in
prohibiting the punishment. But if history is indeed inevitably
progressive, what need is there for the Court’s input in cases like
Atkins and Roper? If society as a whole was in the process of evolving,
then State legislatures would surely prohibit the mode of punishment
in a matter of time without the Court’s opinion. Thus, the Court’s
decisions under this approach to the doctrine are implicitly irrelevant.
It is far from clear, however, that history is naturally progressive.
The Warren Court anticipated that as society “evolved” and became
“more mature,” the Court would interpret the Constitution in a
manner that reflected society’s increasingly “humane” standards.551
Yet, with the national trend towards more severe punishments in the
1980s and 1990s, especially for drug offenders, sex offenders, and
recidivists,552 the promise of the evolving standards of decency test
was in a practical sense broken. According to the numbers-based
approach to the Eighth Amendment, the doctrine now provides no
means by which the Court can respond to the increasing popularity of
more severe punishments for crimes that have historically been
punished less severely or not at all. The evolving standards of decency
test unreasonably assumes that public opinion moves in only a single

549

Atkins v. Virginia, 536 U.S. 304, 315 (2002).
Id. at 315-16.
551 John F. Stinneford, Evolving Away from Evolving Standards of Decency, 23 FED.
SENT’G REP. 87, 88 (2010).
552 See supra Part I; see also Michelle S. Phelps, Rehabilitation in the Punitive Era:
The Gap Between Rhetoric and Reality in U.S. Prison Programs, 45 LAW & SOC’Y REV. 33,
34 (2011) (describing the increase in the last thirty years “towards more degrading
forms of punishment such as the return of chain gangs, tougher penalties for young
people convicted of crimes, increased panic and legislation concerning sex and drugrelated crimes, and an increase in punitive ‘supermax’ facilities”).
550

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direction — towards leniency.553 The rise of mass incarceration has
proved that this assumption is simply incorrect.
Under the second inquiry, the Court is explicitly irrelevant. In
Enmund, Thompson, and Graham, the Court emphasized the exceeding
rarity with which the punishments at issue were imposed.554 Under
the “exceedingly rare” criterion for an evolving standard, the Court
does little more than explain that the practice in question is already
virtually nonexistent. In Coker, Enmund, Thompson, and Graham, the
Court explained that society was already unwilling to impose the
punishment, as sentences had either not been handed down or
executions carried out on these defendants in recent years. Thus, the
Court’s second inquiry is an attempt to show only that society has
already done what the Court says it will now do and that the Court’s
decision will require what society already requires in nearly every
relevant case.
This is contrary to the Article III responsibility of the judiciary, for if
the contours of the Eighth Amendment were based solely on numbers,
the Court would serve no role in interpreting it, other than to affirm
the popular sentiment of the nation and its legislatures — a role that is
fundamentally at odds with our constitutional structure. These
problems result because the numbers-based evolving standards
doctrine is an abnegation of judicial responsibility, rather than a
doctrine of constitutional interpretation. The very heart of the
doctrine is the premise that the people and the states should decide
what the Constitution means rather than the Court. If, for instance,
every jurisdiction in the United States in 2018 passed legislation to
impose corporal punishment on defendants convicted of rape, then,
according to the Chief Justice, the Court must then conclude that the
nation had “evolved” to impose a harsher punishment merely because
legislatures were unanimous and corporal punishment was imposed
by juries frequently.555
The Court is only able to intervene when the threat of widespread
manifest injustice is exceedingly small. But, if manifest injustice were
to arise in the form of heinous and severe punishments being imposed
frequently on a particular class of people, on this logic, the Court
would be prevented by the evolving standards of decency doctrine
553 See generally Jacobi, supra note 419, at 1119-23 (explaining how public opinion
can swing in either a liberal or a conservative direction).
554 See supra Subpart IV.C.
555 Note that ear cropping and tongue cutting were both common at the time of the
founding. See Tonja Jacobi, Cruel and Unusual Punishment (VIII), in 1 ENCYCLOPEDIA
OF AMERICAN CIVIL LIBERTIES 383, 385 (Paul Finkelman ed., 2006).

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from intervening when its intervention would be most needed.
Arguably, with the rise of the system of mass incarceration and the
racial and class inequities exhibited in that system, this last possibility
has already come to fruition.556 Under the approach used by the Court
in Graham and argued by Chief Justice Roberts in his dissent in Miller,
the fact that the criminal justice system frequently sentences poor
minorities to longer sentences prevents the Court from addressing that
very issue.
The Court’s reluctance to intervene when injustice occurs frequently
is evidenced by its decision in McCleskey v. Kemp, where a five-vote
majority of the Court rejected a defendant’s challenge to the Georgia
capital-sentencing statute under which he was sentenced to death.557
In McCleskey, the defendant relied on the comprehensive Baldus study
that revealed that black defendants who had murdered white victims
were much more frequently sentenced to death than their white
counterparts in cases where the crime was not clearly so heinous as to
make the imposition of the death penalty very likely.558 While the
Court’s decision in McCleskey was ostensibly based on the defendant’s
inability to demonstrate invidious discriminatory intent,559 the Court
could just as easily have determined that the significant increase in the
frequency with which blacks were sentenced to death in the midrange
of unpredictable cases warranted the Court’s intervention on the same
grounds that Georgia’s sentencing scheme was arbitrary and capricious
as in Furman.560 Under McCleskey, racial disparities in sentencing that
disproportionately impact blacks were deemed constitutionally
insignificant if defendants cannot prove intentional racial
discrimination, even if defendants can prove that it is both likely and
frequent.561 Years after McCleskey, statistics continue to show that
racial minorities regularly receive comparatively disproportionate
punishments, an injustice that occurs far more frequently than the
“exceedingly rare” punishments with which the Court has concerned
itself under the terms of its largely irrelevant Eighth Amendment

556 See DOUGLAS C. MCDONALD & KENNETH E. CARLSON, U.S. DEP’T OF JUSTICE,
BUREAU OF JUSTICE STATISTICS, SENTENCING IN THE FEDERAL COURTS: DOES RACE MATTER?
1 (1993), https://www.ncjrs.gov/pdffiles1/Digitization/145328NCJRS.pdf; Charles J.
Ogletree, The Significance of Race in Federal Sentencing, 6 FED. SENT’G REP. 229, 230
(1994).
557 McCleskey v. Kemp, 481 U.S. 279, 314-20 (1987).
558 Id. at 286-87.
559 See id. at 313.
560 See id. at 320-22 (Brennan, J., dissenting).
561 See id. at 321-22.

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jurisprudence.562
In this era of mass incarceration, the Court should abandon an
approach to the Eighth Amendment that is based on the rarity of
potential harms to constitutional rights. Departing from the numbersbased approach to the evolving standards of decency doctrine would
not propel the Court into uncharted waters but would enable it to
return to firm constitutional footing that predates its innovation in
Gregg by decades. If the Court were to embrace generally applicable
constitutional principles, such as proportionality, it could finally
guarantee that racial minorities are not subjected to cruel and unusual
punishments due to their race. An approach to the Eighth Amendment
based on rarity is incoherent, inconsistent with a federalist system of
governance, and destructive of the judicial branch’s status as a coequal branch of government.
In Weems, the Court concluded that the Eighth Amendment could
not be construed as an empty promise that “prevent[ed] only an exact
repetition of history.”563 Instead, the Weems Court concluded that the
Eighth Amendment provided the means for the Court to place limits
on possible future legislative enactments that may prove to be cruel
and unusual in their application.564 The Weems Court recognized that
while the function of the legislature is primary, its function has
constitutional limits, and “those . . . the judiciary must judge.”565
When those limits are reached, the legislative power may be brought
to the judgment of a power “superior to it for the instant,” and the
proper exercise of that superior power requires the judiciary to
comprehend “all that the legislature did or could take into account[]
— that is, a consideration of the mischief and the remedy.”566 In short,
the Weems Court described the role of the Court as one in which the
Court exercises its own judgment regarding the appropriateness of a
punishment.567 Such a straightforward approach presumes the coequal status of the judiciary as safeguard of the Constitution, as
opposed to the numbers-based evolving standards of decency doctrine,
which requires the Court to determine what legislatures, juries, and
the public at large would prefer that the Court do.
Although numbers may seem objective, they do not explain the
Court’s conclusions in its Eighth Amendment cases. By manipulating
562
563
564
565
566
567

See MCDONALD & CARLSON, supra note 556, at 1; Ogletree, supra note 556, at 230.
Weems v. United States, 217 U.S. 349, 373 (1910).
Id.
Id. at 379.
Id. at 378-79.
See id. at 379-80.

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which numbers it considers and how to assess those numbers, the
Court has clearly been exercising its independent judgment as to the
propriety of particular punishments. In Miller, the Court embraced a
role comparable to that which the Court adopted in Weems. Such a
role seems preferable to the Court’s incoherent numbers-based
approach, which has in reality proven far more malleable than an
approach based on a generally applicable principle, such as
proportionality.
While the Court should not lightly impose its subjective beliefs,
neither should we quickly conclude that determinations concerning
proportionality are hopelessly subjective. The concept of
proportionality exists at the very heart of any understanding of
criminal law and legally authorized punishment. Proportionality
informs both the retributive and the utilitarian concepts of
punishment, and it has been a part of the Court’s Eighth Amendment
jurisprudence since 1910.568 The notion of proportionality is thus a
concept that the justices are familiar with and expert in applying,
similar to the concept of foreseeability in torts or voluntariness in
criminal law. In contrast, the Court has shown itself to be at best
inexpert in numerical analysis, and at worst entirely disingenuous.
Subjectivity is inherent in judgment, and masking judgment behind
choice in numbers only clouds accountability, rather than providing
any genuine objectivity. But even if the Court could ascertain how to
perfectly and consistently count state legislation, it should not do so,
for it should not abdicate its responsibility to give meaning to a
broadly-worded constitutional provision that is on its face not limited
to an enumerated checklist of prohibited punishments. The Court
should follow the precedent of Weems and meaningfully subject
punishments to the independent judgment of a co-equal branch of
government.
CONCLUSION
A potential justification for the Supreme Court refusing to regulate
doctrines that impact both the vast majority of people in the criminal
justice system and the most pressing problems that the system faces is
that the Court regulates all of these topics indirectly. In its
exclusionary-rule jurisprudence, this claim is explicit — that the
innocent will be protected by prohibiting police from violating the
rights of those against whom evidence is actually found.569 This
568
569

See id. at 385-88.
See supra Subpart I.C.

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assumption has been shown to be unsound, but the Court continues
to rely on this convenient untruth. In other contexts, the claim is
implicit. For instance, pleas arguably occur in the shadow of the
highly-regulated trial context, yet not only is this an unsafe
assumption at the best of times, the Court has undermined such logic
by severing the link between due process in each context. Similarly,
the argument that the extreme nature of death-penalty cases may shed
light on the fundamental rules of sentencing jurisprudence more
generally is made untenable by the Court unmooring the most
foundational principle of fairness in the criminal justice system
(proportionality) from all but the rarest punishment (execution) even
though the doctrine grew from the non-capital context.
Some states have taken the leeway provided by the Court’s inaction
even further. For instance, some states have expanded on Ruiz’s ruling
that Brady does not apply to pleas by allowing prosecutors to withhold
evidence from defendants until shortly before trial, including witness
names, statements, and other key evidence.570 While some states have
filled the gap by passing reforms that the Supreme Court refuses to
craft,571 the Court’s abdication in this area leaves fundamental rights
ill-defined and unregulated. This is not because courts are incapable of
filling such an institutional role: the Seventh Circuit’s close attention
to the constitutionality of conditions of supervised release belies that
claim.572
Other more specific defenses also fall apart under scrutiny: for
instance, the defense of the Supreme Court’s refusal to examine
disproportionate non-capital sentences because the Eighth
Amendment is concerned only with procedure is contradicted by the
Court’s willingness to apply the Eighth Amendment to substantive
issues in capital punishment, such as whether juveniles are adequately
culpable for that penalty.
As we have shown, the Supreme Court’s minimalist jurisprudence
constitutes a cone of shame in which the Court disregards most people
affected by its rulings at every step of the way. It protects as few as 2%
570 Beth Schwartzapfel, Defendants Kept in the Dark About Evidence, Until It’s Too Late,
N.Y. TIMES (Aug. 7, 2017), https://www.nytimes.com/2017/08/07/nyregion/defendantskept-in-the-dark-about-evidence-until-its-too-late.html?emc=edit_ta_20170807&nl=topstories&nlid=20948488&ref=headline.
571 See id.
572 See Kim Janssen, U.S. Appeals Court Slams Handling of Supervised Release,
Reverses Four Sentences, CHI. SUN-TIMES, (Jan. 13, 2015, 5:09 PM),
https://chicago.suntimes.com/news/u-s-appeals-court-slams-handling-of-supervisedrelease-reverses-four-sentences (describing multiple cases in which the Seventh
Circuit struck down unconstitutional supervised release conditions).

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of those subject to Terry stops and regulates the less than 3% of that
small group who are then charged and go to trial. Furthermore, it
shields less than 1% of that tiny subset facing capital rather than noncapital sentences, and it focuses on the handful of even those facing
execution, premising action on its own irrelevance.
Not only are the vast remainder of people ignored, but in each of
those steps, racial minorities — particularly African-Americans — are
particularly harmed by the Court’s failure. Each of the major crises in
the criminal justice system unfolding today is the result of the Court’s
abdication of its responsibilities, and each disproportionately affects
African-Americans: discriminatory stops, including those designed to
harass and intimidate; fatal police shootings; potentially
unconscionable plea deals; mass incarceration; unnecessarily long
prison terms leading to a missing generation of black men; and the
disproportionate execution of black prisoners. Whereas the Warren
Court was drawn into criminal procedure through the lens of race, the
modern Court appears to be avoiding every racially significant issue.
This raises the natural question of whether the Supreme Court is truly
blind to these issues or whether it is purposely neglecting them. Either
way, the Court’s extensive jurisprudence in criminal procedure has
become a sideshow in the actual operation of the criminal justice
system.
A better question than asking whether the Supreme Court’s
avoidance is deliberate is how its hand can be forced to address these
issues. The Supreme Court responds to constituencies. The deathpenalty bar has become an influential force, and the Supreme Court
has responded with comprehensive jurisprudence over the death
penalty. More recently, the juvenile bar has become a powerful player,
and the Supreme Court has responded with multiple decisions
protecting juveniles, not only in the death penalty context but by
crafting a rare non-capital prophylactic. To bring about change,
interested actors need to forge coherent constituencies. As Whren
illustrated, it is manifestly difficult to bring race-based challenges in
the criminal context, but cases do not need to be developed in racial
terms to affect such change. In recent years, bipartisan agreement has
been developing over excessively long sentences, bringing together
interests concerned with fairness and those concerned with
resources.573 Developing more such constituencies will pressure the
573 See Norman J. Ornstein, There Are Emerging Bipartisan Coalitions on Prison and
N.S.A. Reforms, N.Y. TIMES: ROOM FOR DEBATE (Sept. 29, 2015, 12:48 PM),
https://www.nytimes.com/roomfordebate/2014/11/05/the-possibility-of-post-electionbipartisan-deals/there-are-emerging-bipartisan-coalitions-on-prison-and-nsa-reforms.

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Court to act, however grudgingly, to embrace its responsibility and
cease its abdication in criminal procedure jurisprudence.
APPENDIX
Figure 1: Percentage of Supreme Court Criminal Procedure Cases, by
Term

Data: Harold J. Spaeth et al., 2017 Supreme Court Database, Version
2017 Release 01, WASH U. L., http://supremecourtdatabase.org (last
visited Mar. 20, 2018).

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Figure 2: Supreme Court Case Load, by Term

Data: Harold J. Spaeth et al., 2017 Supreme Court Database, Version
2017 Release 01, WASH U. L., http://supremecourtdatabase.org (last
visited Mar. 20, 2018).