Excessive force is today's most prominently debated governmental abuse. The "shocks the conscience" test is a widely used substantive due process protection that analyzes excessive force claims. More specifically, under excessive force law, the "shocks the conscience" test evaluates whether the government has violated a person's constitutional rights. This Note begins with an overview of Eighth Amendment history and articulates a problem in today's Cruel and Unusual jurisprudence created by the Supreme Court's unsettled proportionality review. This Note then proposes that the Cruel and Unusual Punishments Clause should be interpreted with the "shocks the conscience" standard. For an Eighth Amendment "shock the conscience" test would standardize what constitutes cruel and unusual punishment and, therefore, settle Cruel and Unusual jurisprudential conflicts.
Jency Megan Butler,
Shocking the Eighth Amendment's Conscience: Applying a Substantive Due Process Test to the Evolving Cruel and Unusual Punishments Clause,
43 Hastings Bus L.J. 861
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol43/iss4/4