John Kip Cornwell * | 25.1 | Citation: John K. Cornwell, Status-Based Prosecution: Conflict, Confusion and the Quest for Coherence, 25 U. Pa. J. Const. L. 108 (2023).

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In two seminal cases from the 1960s, the U.S. Supreme Court addressed the extent to which the Eighth Amendment permitted the punishment of status versus conduct linked to status. The splintered decisions and analytical imprecision that resulted from those cases have bedeviled lower courts ever since, and the Supreme Court has refused to clarify the confusion. This uncertainty has manifested most recently in the context of homelessness, as courts have disagreed passionately over whether laws criminalizing “life-sustaining” activities in public are unconstitutional as applied to persons who lack private spaces to perform these activities. The status/conduct debate has also engaged scholars who have argued, at times irreconcilably, that a host of criminal statutes impermissibly punish status, including: the cash bond system (poverty); public bathroom laws (gender identity); fetal exposure to illegal drugs (pregnancy); and driving without a license (immigration status). To lend coherence to this area of law, this Article argues that the meaning of status in criminal law should take account of the insights offered by sociologists who have studied this issue in great detail for decades. Incorporating the sociological perspective is not only important in the creation of a workable framework addressing status and conduct; it recognizes, at the same time, the primacy of status in defining who we are and what access status affords to a host of societal benefits. 

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* Interim Dean and Eugene Gressman Professor of Law, Seton Hall Law School