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Abstract

The United States imprisons a greater proportion of its own population than any other country in the world.2 A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence).3 Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons.4 That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the principle that the Constitution still applies behind bars. This Note argues that, as Justice Thomas has long believed, the Eighth Amendment, properly understood, covers only the specific sentence declared by a sentencing court. Beyond that specific sentence, a convicted person has a substantive due process right to be free from unsanctioned punishment; and therefore, any of his claims should be governed by the more protective due process standard that pretrial detainees enjoy.

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