116 CHAPTER 4|CIVIL LIBERTIES
While never again challenging the death penalty, the Court has been chipping
away at its edges for two decades. The Court has struck down state laws mandat-
ing the death penalty in murder cases and another law requiring it for rape. It has
also prohibited the execution of insane prisoners and abolished the death penalty
for the mildly retarded (2002), for juveniles (2005), and for child rapists (2008).^88
One unsettled area of Eighth Amendment law concerns “proportionality”—the
idea that some punishments may be so disproportionate to the crime that they
constitute “cruel and unusual punishment.” Recently, the Court has applied pro-
portionality (disallowed these punishments) in the following situations: taking
away citizenship as punishment for a crime,^89 incarceration for drug addiction,^90
beating of prison inmates,^91 and issuing a disproportionate prison sentence.^92 In
the latter case the Court ruled that a life sentence without the possibility of parole
for a seventh nonviolent felony (cashing a $100 check on a closed account) was
unconstitutional.
In 1991, however, the Court began to limit application of the principle to cases
with a “gross disproportionality,” saying that “the Eighth Amendment contains
no proportionality guarantee.”^93 More recently, the Court ruled in two cases that
California’s “three strikes and you’re out” law (which mandates very harsh sen-
tences for third felony convictions) did not violate the Eighth Amendment. In the
fi rst case Gary Ewing stole three golf clubs, each valued at $399, and received
25 years to life. In the other case Leandro Andrade stole nine videotapes valued at
$150 from two diff erent K-Marts and received two consecutive terms of 25 years
to life (because there were two crimes).^94 In each case the defendants’ previous
felony convictions were for nonviolent crimes.Privacy Rights
You may be surprised to learn that the word privacy does not actually appear
in the Constitution. Privacy rights were developed in a 1965 case that ques-
tioned the constitutionality of an 1879 Connecticut law against using birth con-
trol. Estelle Griswold, the director of Planned Parenthood in Connecticut, was
arrested after opening a clinic that dispensed contraceptives. She was fi ned
$100 and appealed her conviction all the way to the Supreme Court, which over-
turned it.
In a fractured decision the Court agreed that the law was outdated, but the
justices agreed on little else. Even those who based their opinions on an implied
constitutional right to privacy cited various constitutional roots: the First Amend-
ment right of association, the Third’s protection against the quartering of troops,
the Fourth’s prohibition against unreasonable searches and seizures, the Fifth’s
protection against self-incrimination, and the Ninth’s statement, “The enumera-
tion in the Constitution, of certain rights, shall not be construed to deny or dis-
parage others retained by the people.”^95 Griswold was signifi cant for establishing
the constitutional basis for a right to privacy, but the dissenters worried where
this right would lead. Justice Black warned that privacy “is a broad, abstract and
ambiguous concept” that could be shrunken or expanded in subsequent decisions
as judges determine what is constitutional on the basis of their own appraisal of
what laws are unwise or unnecessary.^96privacy rights Liberties pro-
tected by several amendments in
the Bill of Rights that shield certain
personal aspects of citizens’ lives
from governmental interference,
such as the Fourth Amendment’s
protection against unreasonable
searches and seizures.
EXPLAIN WHY THE
RIGHTS ASSOCIATED
WITH PRIVACY ARE OFTEN
CONTROVERSIAL