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April 28, 2008

Another sound attack on Eighth Amendment jurisprudence

In this post last week, I noted Benjamin Wittes attack on modern Eighth Amendment jurisprudence this thoughtful article in the December 2005-January 2006 issue of Policy Review.  Today, I see that Wittes is keeping up his justified attack with this new essay at the New Republic, titled "Unusual Nonsense: The Supreme Court's continued failure to rationalize its decisions about cruel and unusual punishment."  Here is how it starts:

The Supreme Court last week gave the country an object lesson in the absurdity of the Eighth Amendment — at least, as it is currently understood by the justices.  On a single day, it handed down a decision upholding as constitutional the specific mixture of drugs by which thirty states put condemned prisoners to death, and it then went on to hear oral arguments over the question of whether states may constitutionally execute child rapists.  That may not sound absurd, and it wouldn't be if the court had any kind of coherent approach to cases alleging "cruel and unusual punishment."  But it doesn't.  So the one-two punch, like so most of the court's recent hand-wringing over the amendment, operated more as a kind of philosophical and — let's face it — political Rorschach test for the justices than anything else.

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April 28, 2008 at 09:12 AM | Permalink

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