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Hastings Constitutional Law Quarterly

Authors

Carrie Leonetti

Abstract

Given that the United States Constitution and the New Zealand Bill of Rights Act both contain prohibitions against governmental acts of cruelty and torture, this Article offers a comparative analysis of the judicial interpretations of the meaning of “cruel” in the prohibition against cruel and unusual punishment in the two country’s founding documents. The Article beings by considering the shared historical underpinnings of the prohibitions, which require a proportionality analysis when assessing whether a punishment is excessive. Next, it examines the meaning of “cruelty” and the scope of the prohibitions in New Zealand and the United States. The Article documents how, notwithstanding their shared historical origins, the meanings of prohibited cruelty in the United States and New Zealand have considerably diverged in judicial interpretation. Professor Leonetti notes this divergence is particularly noteworthy in light of the persistence of the constitutionality and pervasive popularity of the death penalty in the United States. The Article concludes that this divergence is best explained not by reference to textual differences between the United States Constitution and the New Zealand Bill of Rights Act, but rather by reference to the two countries’ prevailing judicial philosophies surrounding the meaning of proportionality.

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