Now lawyers for the woman — if they don’t broker a settlement with the Recording Industry Association of America — are likely to go before Davis to attack the award. If they take Berkman’s approach, they have a big hurdle: The U.S. Supreme Court once rejected a cruel-and-unusual challenge to a 50-year prison term received by a California man caught shoplifting golf clubs.

For some good technical information about the Constitutional problems raised by the $1.92 million Jammie Thomas-Rasset decision, note this blog post from the EFF. However, the author of this article has a point. For a look just exactly how weak the Supreme Court thinks that the 8th amendment is, check out Lockyer v. Andrade.

On November 4, 1995, Andrade stole five videotapes from a K-Mart store in Ontario, California. Two weeks later, he stole four videotapes from a different K-Mart store in Montclair, California.

As a result of his prior convictions, Andrade was sentenced to two consecutive terms of 25 years to life in prison.

"Andrade, like the defendant in Solem, was a repeat offender who committed theft of trifling value, some $150, and their criminal records are comparable, including burglary (though Andrade's were residential), with no violent crimes or crimes against the person." Because Andrade was 37 at the time of the offenses in this case, the 50-years-to-life sentence was effectively life without parole...

This is the sort of thing that people in the future will look back upon and remark about how barbaric and primitive we are.

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