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Authors

Scott W. Howe

Abstract

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction imposed represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishment they receive. A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, this view of the Eighth Amendment challenges many current criminal-law doctrines and sentencing practices that favor crime prevention over retributive limits. Mistake-of-law doctrine, felony-murder rules, and mandatoryminimum sentencing laws are only a few examples. Why have these laws and practices survived? One answer is that the Supreme Court has limited proportionality relief to a few narrow problems involving the death penalty or life imprisonment without parole, and it has avoided openly endorsing the deserts limitation even in cases in which defendants have prevailed. This Article presents a deeper explanation. I point to four reasons why the doctrine must remain severely stunted in relation to its animating principle. I aim to clarify both what the Eighth Amendment reveals about the kind of people we would like to be and why the Supreme Court is not able to force us to live up to that aspiration.

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