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Iowa Law Review

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How many “cruel and unusual punishments” clauses are there? Michael Mannheimer, in his article, Cruel and Unusual Federal Punishments, argues that there are two—one for the federal government and one for state governments.1 Mannheimer contends that courts have been unduly neglecting the former and mistakenly applying the latter to the federal government without adequate reflection.2 Mannheimer further argues that the Eighth Amendment is primarily a device to promote state sovereignty and that we should accordingly read it as requiring that federal punishments be no more severe than state punishments for equivalent crimes.3 I cannot do justice in this brief Response to the richness of Mannheimer’s various arguments, so I will limit myself to three comments. First, if, as Mannheimer argues, the Supreme Court’s jurisprudence has been “driven by concerns of federalism,”4 then it seems to follow that such federalism concerns should play no role when asking whether federal punishments are cruel and unusual. However, as I will argue below, federalism has played only a minor role in the Court’s proportionality jurisprudence and taking its federalism concerns out of the equation is thus unlikely to make much of a difference. Second, Mannheimer’s thesis that the Eighth Amendment should be read as a device to promote state sovereignty5 has drastic implications about the Eighth Amendment’s ability to regulate state punishments, and such implications may well constitute a reason to reject his account. Third, the existing proportionality jurisprudence, with some adjustments, can easily accommodate Mannheimer’s concerns about the excessive scope and harshness of the federal criminal law,6 and adopting Mannheimer’s account is not necessary to devise a theoretical basis for the Eighth Amendment to regulate federal criminal law and punishment