Desert and the Eighth Amendment

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. First, statements about desert that fail to capture the core of ordinary moral intuitions cannot be ultimately successful. Second, it is a mistake to believe that answers to questions about desert can be simply read off public opinion surveys or inferred from laws passed by legislatures. The role of theories about desert is to take various particular convictions held by people about what people deserve and test them against broad principles, while warning against various sources of confusion and excess that frequently infect desert judgments, such as prejudice and vindictiveness. The relationship between desert theories and popular sentiments is thus quite complex, and we must be suspicious of simple assertions either in favor of dismissing theories as irrelevant or in favor of disregarding popular sentiments as base or irrational.

Keywords: desert, retribution, Eighth Amendment, Cruel and Unusual Punishments