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"Desert and the Eighth Amendment"

By Douglas A. Berman

The title of this post is the title of this new paper from Professor Youngjae Lee available via SSRN. Here is the abstract: What would a constitutional right based on desert look like? If "the people" believe that, say, child rapists should receive the death penalty, on what basis can one make an Eighth Amendment argument that says that "the people" got the desert question wrong?  In order to answer this question, this Essay addresses a set of related questions, one step removed: What should be the significance of ordinary intuitions about what people deserve when criminal law scholars theorize about what people deserve?  If a popular belief about a question of desert does not match up with conclusions arrived at through theorizing and reflections about desert, who should revise their views ? the people or the theorists?  The answer, I suggest in this Essay, is twofold...continue to full post

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