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Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence

52 Pages Posted: 2 Aug 2017  

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Sandeep Gopalan

Deakin University, Geelong, Australia - Deakin Law School

Date Written: July 31, 2017

Abstract

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment, which the state can inflict on criminal offenders. Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim,” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.” The criticism of Justice Scalia’s approach to the Eighth Amendment, so far as it relates to the harshness of criminal sanctions, is wide-ranging and sometimes verging on the disparaging. The overwhelming weight of prevailing sentiment is that Justice Scalia was a foe of Criminal Law and Procedure to the extent that this is associated with a moderate or lenient approach to the punishment of offenders. A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and rights (including prisoners’ rights) arguably put this characterization in a different light. While Justice Scalia may have resisted a move to less harsh sentencing and expansive rights to prisoners, there is an underlying coherence to some of his key decisions that is underpinned by the provisions he was applying and, even more so, the logical and normative contents or vagueness of the concepts under consideration.

Keywords: Sentencing, Justice Scalia, Eighth Amendment Jurisprudence, Prisoners' Rights, Proportionality

JEL Classification: K14

Suggested Citation

Bagaric, Mirko and Gopalan, Sandeep, Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence (July 31, 2017). Akron Law Review, Vol. 50, Iss. 2, Article 5, 2017. Available at SSRN: https://ssrn.com/abstract=3011360

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

Sandeep Gopalan

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

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