Part I of this Article gives background on the origins of the Eighth Amendment doctrine concerning prison conditions and identifies persistent conflicts regarding the theoretical underpinnings for the doctrine. This history then provides context for Part II's description of the problems plaguing the current two-prong Eighth Amendment test. Part III includes a brief examination of the theoretical basis underlying other areas of Eighth Amendment jurisprudence, including those challenging criminal sentences, fines, and method of execution cases. This review demonstrates that nearly all of these doctrines rely on a determination of the "excessiveness" of a given punishment, a proportionality analysis that is absent from conditions cases. Part III considers whether proportionality review can be imported into the context of challenges to prison conditions, and the benefits and drawbacks of doing so.
Part IV discusses how the two-prong test should be modified to address these concerns. First, I argue that the current "objective" test should include a balancing test reviewing the "excessiveness" of a given condition. This analysis would expressly permit courts to consider the prison condition in light of the purpose for which it is employed. Second, I urge courts to infer intent in injunctive cases under the "subjective" prong. This inference will promote efficiency and will ensure that ongoing harmful conditions are stopped.
49 Am. Crim. L. Rev. 1815 (2012).