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June 9, 2009

An initial (deep?) thought about modern Eighth Amendment jurisprudence

Ever since the Supreme Court's cert grant in the juve LWOP cases of Graham and Sullivan (basics here and here), I have been thinking about ways the Justices might breathe some new life into a troublesome modern Eighth Amendment jurisprudence.  Though I may not do full series of posts about my recent Eighth Amendment thoughts, I wanted to at least of some of my thinking here in the space for group discussion purposes.

Problematically, the more deeply I think about the Eighth Amendment, the less sure I am that I have a good answer for how to improve the modern jurisprudence.  Nevertheless,  I am developing some interesting new thoughts and insights about why existing Eighth Amendment jurisprudence is so troublesome.  For example, consider this (simple?) thesis:

Modern Eighth Amendment jurisprudence is such a mess in part because it is informed much too much by unsophisticated punishment theory and much too little by sophisticated constitutional theory.

As Linda Richman from Coffee Talk might say, talk amongst yourselves as I head out to talk some more about prosecutorial power.

June 9, 2009 at 12:37 PM | Permalink


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I think it's clear that a majority of the justices are content to move the one-way ratchet at a slow (glacial) pace, and that is as much of an Eighth Amendment theory as they are going to invest in.

Posted by: Marc Shepherd | Jun 9, 2009 12:54:00 PM

How about the "excessive bail" clause of the Eighth Amendment? When was the last time scotus heard a case about that? I suspect tens of thousands people are held each year pending trial. Perhaps that clause deserves some attention.

Posted by: dm | Jun 9, 2009 4:17:03 PM

I would put it this way. Modern Eighth Amendment is such a mess because the courts have tended to put the cart before the horse. The prohibition of excessive bail, excessive fines and cruel and unusual punishment all presuppose that the state had a viable plan to accomplish some compelling governmental objective. Without anchoring these prohibitions on a viable plan, which was based on valid objective, who can say what was excessive or cruel and unusual? First look at the plan, and then make a judgment about the strategy that was used.

Posted by: Tom McGee | Jun 9, 2009 4:38:19 PM

I don't see how the death penalty is crueler than a long prison term. If prison is less cruel, why not give the choice to the convict?

Posted by: Supremacy Claus | Jun 9, 2009 9:44:31 PM

It depends on the State's plan and whether it was reasonable.

Posted by: Tom McGee | Jun 9, 2009 10:35:16 PM

Doug, this seems like a very good topic for discussion, but I am hoping the next post will have a little more meat. I am not totally unfamiliar with modern Eighth Amendment jurisprudence, but your vague references to "unsophisticated punishment theory" and "sophisticated constitutional theory" leave a lot of work for your readers to figure out what you are getting at. I mean, maybe I'm just lazy, but could you give us a hint of what you think this distinction means in practical/doctrinal/theoretical terms?

Posted by: Anon | Jun 10, 2009 9:40:29 AM

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