The Administrative Law of the Eighth (and Sixth) Amendment

The Eighth Amendment and Its Future in a New Age of Punishment (Meghan J. Ryan & William W. Berry III eds., Cambridge University Press, Forthcoming)

Wayne State University Law School Research Paper No. 2021-78

15 Pages Posted: 3 Dec 2020 Last revised: 22 Jan 2021

Date Written: January 17, 2020

Abstract

On the surface, few similarities exist between modern administrative law and the modern constitutional law of sentencing. Administrative law is preoccupied with structural constitutional law, statutory interpretation, and regulatory policy. Constitutional sentencing law is overwhelmingly concerned with individual constitutional rights, blame, and punishment. Scholars thus rarely draw connections between the two.

This Chapter—written for a forthcoming volume on “The Eighth Amendment and Its Future in a New Age of Punishment”—does just that. Administrative law and the constitutional law of sentencing can be seen as sharing a fundamental concern about the structure of decision-making: how to ensure that difficult, value-laden judgments best reflect and filter the viewpoints and concerns of those they affect. Just as the institutional and procedural structure of administrative law evolved in large part to address issues of voice and perspective in the regulatory context, we might understand the arc of constitutional sentencing law over the last half-decade as slowly moving in a parallel direction.

Keywords: criminal justice, criminal law, criminal procedure, sentencing, punishment, administrative law, checks and balances, eighth amendment, sixth amendment

Suggested Citation

Bierschbach, Richard A., The Administrative Law of the Eighth (and Sixth) Amendment (January 17, 2020). The Eighth Amendment and Its Future in a New Age of Punishment (Meghan J. Ryan & William W. Berry III eds., Cambridge University Press, Forthcoming), Wayne State University Law School Research Paper No. 2021-78, Available at SSRN: https://ssrn.com/abstract=3716331

Richard A. Bierschbach (Contact Author)

Wayne State University Law School ( email )

471 Palmer
Detroit, MI 48202
United States

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