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Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence

By Douglas A. Berman

"The Eighth Amendment is a jurisprudential train wreck" is how Benjamin Wittes justifiably started this terrific article, entitled, "What is cruel and unusual?", appearing in the December 2005-January 2006 issue of Policy Review.   I basically agreed then, and still agree now, with this attack by Wittes on modern Eighth Amendment jurisprudence: The Supreme Court's case law has left the amendment without coherent meaning.  No principle guides its reach.  No methodology solemnly pronounced in any case do the justices predictably follow in the next.  A punishment upheld today can be, without alteration, struck down tomorrow with no justice even admitting that his or her mind has changed.  The justices no longer even pretend to examine whether a punishment offends the amendment's textual prohibition...continue to full post

Full post as published by Sentencing Law and Policy on April 20, 2008 (boomark / email).