Citations (2)


Footnotes (38)



Desert and the Eighth Amendment

Youngjae Lee

Fordham University School of Law


University of Pennsylvania Journal of Constitutional Law, Vol. 10, 2008
Fordham Law Legal Studies Research Paper No. 1234263

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.

Number of Pages in PDF File: 13

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

Open PDF in Browser Download This Paper

Date posted: August 19, 2008 ; Last revised: January 20, 2009

Suggested Citation

Lee, Youngjae, Desert and the Eighth Amendment (2008). University of Pennsylvania Journal of Constitutional Law, Vol. 10, 2008; Fordham Law Legal Studies Research Paper No. 1234263. Available at SSRN: https://ssrn.com/abstract=1234263

Contact Information

Youngjae Lee (Contact Author)
Fordham University School of Law ( email )
150 West 62nd Street
New York, NY 10023
United States
212-636-7662 (Phone)
Feedback to SSRN

Paper statistics
Abstract Views: 984
Downloads: 109
Download Rank: 199,606
Citations:  2
Footnotes:  38