TITLE

THE ILLUSORY EIGHTH AMENDMENT

AUTHOR(S)
STINNEFORD, JOHN F.
PUB. DATE
December 2013
SOURCE
American University Law Review;Dec2013, Vol. 63 Issue 2, p437
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
Although there is no obvious doctrinal connection between the Supreme Court's Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating "prophylactic" rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court's use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication. This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.
ACCESSION #
94054124

 

Related Articles

  • Victims and the Supreme Court's Eighth Amendment Jurisprudence in Miller v. Alabama: A Tale of a Constitutive Paradox for Victims. Garvin, Meg // New England Journal on Criminal & Civil Confinement;Spring2013, Vol. 39 Issue 2, p303 

    "Law is most usefully seen ... as a branch of rhetoric; and that the kind of rhetoric of which law is a species is most usefully seen not, as rhetoric usually is, either as a failed science or as the ignoble art of persuasion, but as the central art by which community and culture are...

  • ACCRUAL AND UNUSUAL? CALIBRATING THE STATUTE OF LIMITATIONS ON SECTION 1983 METHOD-OF-EXECUTION CHALLENGES. LENNON, CHAD // Emory Law Journal;2012, Vol. 62 Issue 2, p407 

    Death-row prisoners have long challenged the methods by which states intend to execute them. Recently, prisoners have begun to challenge revisions made by states to their execution procedures, arguing the revisions violate the Eighth Amendment ban on cruel and unusual punishment. But reviewing...

  • THE FUTURE OF CONFESSION LAW: TOWARD RULES FOR THE VOLUNTARINESS TEST. Brensike Primus, Eve // Michigan Law Review;Oct2015, Vol. 114 Issue 1, p1 

    Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the...

  • THE LAW COURT'S PROPER APPLICATION OF MIRANDA IN STATE V. BRAGG: A "MATTER-OF-FACT COMMUNICATION" TO THE DEFENDANT REGARDING EVIDENCE AGAINST HIM WILL NOT TYPICALLY CONSTITUTE "INTERROGATION". Segal, Stephen B. // Maine Law Review;2013, Vol. 65 Issue 2, p823 

    The article discusses the Maine Supreme Judicial Court case of State v. Bragg, to evaluate whether a police officer's statements regarding evidence against a defendant was equivalent of direct questioning and incriminating response, considering Miranda rights. It informs how Maine determined the...

  • The Privatization of Prisons and Prisoner Healthcare: Addressing the Extent of Prisoners' Right to Healthcare. Bondurant, Brittany // New England Journal on Criminal & Civil Confinement;Spring2013, Vol. 39 Issue 2, p407 

    The following are tragic stories of prisoners subjected to irresponsible privatized healthcare companies, along with the many cases of neglect that have been deliberated by the United States Supreme Court. This Note concerns the privatization of healthcare within the nation's prison systems, and...

  • EXTENDING HOPE INTO "THE HOLE": APPLYING GRAHAM V. FLORIDA TO SUPERMAX PRISONS. Allen, Joseph B. // William & Mary Bill of Rights Journal;Oct2011, Vol. 20 Issue 1, p217 

    The article discusses the 2010 U.S. Supreme Court ruling in the case Graham v. Florida and its impact upon so-called supermax prison facilities. The author argues that the reach of the U.S. Constitution's cruel and unusual punishment clause be expanded in order to bar prolonged detentions in...

  • Repudiating the Narrowing Rule in Capital Sentencing. Howe, Scott W. // Brigham Young University Law Review;2012, Vol. 2012 Issue 5, p1477 

    This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The Article urges the Supreme Court to renounce a largely empty mandate known as the "narrowing" rule and the rhetoric of equality...

  • BIRTHING BARBARISM: THE UNCONSTITUTIONALITY OF SHACKLING PREGNANT PRISONERS. Griggs, Claire Louise // American University Journal of Gender, Social Policy & the Law;2011, Vol. 20 Issue 1, p247 

    The article focuses on the constitutionality of the U.S. practice of shackling pregnant inmates incarcerated in correctional facilities during childbirth. Information is provided on the U.S. court case Nelson v. Correctional Medical Services, in which the court found that shackling a woman...

  • Miranda Rights and Police Interrogation.  // Supreme Court Debates;Sep2000, Vol. 3 Issue 6, p161 

    Focuses on the U.S. Supreme Court decision Miranda versus Arizona which held that prior to police interrogation all suspects must be informed of and acknowledge their rights to remain silent. Right of suspects to request a court-appointed lawyer under the Miranda decision; Guidelines presented...

Share

Read the Article

Courtesy of THE LIBRARY OF VIRGINIA

Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics