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

By Douglas A. Berman

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...continue to full post

Full post as published by Sentencing Law and Policy on June 09, 2009 (boomark / email).