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Journal of Const Law Desert and the Eighth Amendment 2008

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DESERT AND THE EIGHTH AMENDMENT
Youngjae Lee∗
Is the Eighth Amendment prohibition of cruel and unusual punishments a retributivist constraint? Not always. Sometimes the
Eighth Amendment is used as a way of guaranteeing a minimum level
of humanity, dignity, and decency for everyone, without any regard to
individual culpability of offenders. Prison conditions cases have this
logic, and so does the belief that certain forms of punishment, such
as drawing and quartering, crucifixion, and torture, are simply not
allowed under the Eighth Amendment, no matter how heinous the
crime or the criminal.
However, at other times, the Eighth Amendment is used as a retributivist constraint implementing the principle that people should
not be punished beyond what they deserve. Cases such as Coker v.
1
2
3
Georgia, Atkins v. Virginia, and Roper v. Simmons are, at least I would
argue, best understood as retributivist constraint cases that prohibit
the imposition of capital punishment on certain groups of offenders
4
because they do not deserve it. I have also argued that the Eighth
Amendment regulation of lengths of imprisonment should follow the
5
retributivist principle. Ewing v. California, the “three-strikes” case,
takes the position that Eighth Amendment violations occur only

∗
1
2
3
4

5

Associate Professor of Law, Fordham University School of Law. Thanks to Stephanos Bibas and Ken Simons for their comments.
433 U.S. 584 (1977) (prohibiting the death penalty for rape).
536 U.S. 304 (2002) (prohibiting the death penalty for mentally retarded criminals).
543 U.S. 551 (2005) (prohibiting the death penalty for individuals who were under the
age of eighteen when they committed their crimes).
Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677
(2005); see also Carol S. Steiker, Panetti v. Quarterman: Is There a “Rational Understanding”
of the Supreme Court’s Eighth Amendment Jurisprudence?, 5 OHIO ST. J. CRIM. L. 285, 292
(2007) (“[A] better understanding of the Court’s holdings is that retribution alone is a
necessary limit on the constitutional use of capital punishment. Indeed, it is hard to
make much sense of the Court’s Eighth Amendment jurisprudence without such an understanding.”).
538 U.S. 11 (2003) (holding that a prison term of twenty-five years to life under California’s “three-strikes” law was not excessive for shoplifting by a repeat offender).

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when a punishment cannot be justified under any penological theory,
6
and I believe it was wrongly decided for that reason.
There is an asymmetry between the two models of the Eighth
Amendment, which I will call the “dignity model” and the “desert
model.” The “dignity model” fits well with a standard understanding
of constitutional rights. Sometimes people may have excessively vindictive urges, and it is the minimum standard of decency and humanity guaranteed by the Eighth Amendment that can serve to restrain
such retributive instincts. But what does 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?
Habitual offender statutes, the subject of Ewing, are in fact useful
test cases. It is commonly, and casually, assumed that repeat offenders deserve more punishment than first-time offenders. The Federal
Sentencing Guidelines, for instance, asserts that “[a] defendant with
a record of prior criminal behavior is more culpable than a first of7
fender and thus deserving of greater punishment.” The political
rhetoric surrounding California’s “three-strikes” law frequently used
the language of desert and retribution, with some people saying that
repeat offenders deserve draconian prison sentences not just for
committing new offenses after having been punished, but also for be8
ing recidivists.
While the belief that repeat offenders are “deserving of greater
punishment” thus seems widespread, there is far more ambivalence
among desert theorists on this issue, and there has been no satisfactory theoretical account of the prevailing view that recidivists are
9
more culpable. Desert theorists have been generally critical of sen6

7
8

9

Lee, supra note 4, at 736–42; see also Steiker, supra note 4, at 291 (describing Ewing as
standing for the proposition that “[o]nly if a punishment is grossly disproportionate with
regard to any possible purpose of punishment should the Court perform a more searching Eighth Amendment analysis”).
U. S. SENTENCING GUIDELINES MANUAL § 4A1.1, at 364 (2007) (emphasis added).
See, e.g., Erik Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative
Justice, 2003 UTAH L. REV. 205, 256 (explaining that California’s “three-strikes” law was
enacted on the basis “that it is only ‘just’ that recidivists receive lengthy sentences”); Michael Vitiello, Three Strikes: Can We Return to Rationality?, 87 J. CRIM. L. & CRIMINOLOGY
395, 425–26 (1997) (noting that the law may be understood as “a judgment of an offender’s entire record”).
See, e.g., Richard S. Frase, State Sentencing Guidelines: Diversity, Consensus, and Unresolved
Policy Issues, 105 COLUM. L. REV. 1190, 1212 (2005) (noting that “[p]unishment theory is
quite underdeveloped” on this issue); Julian V. Roberts, Punishing Persistence: Explaining
the Enduring Appeal of the Recidivist Sentencing Premium, 48 BRIT. J. CRIMINOLOGY 468, 469

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DESERT AND THE EIGHTH AMENDMENT
10

tencing enhancements based on one’s criminal history, and recidivist statutes such as California’s “three-strikes” law have been criti11
cized on retributivist grounds. Such a state of affairs has led one
commentator to note that on this issue, “[t]he difference between
12
elite and popular conceptions of desert is stark.”
There are two standard approaches to resolving such disagreements between “elite” and “popular” understandings of what people
deserve. First, one may believe that the questions of what people deserve or do not deserve are matters of objective moral reality, and
“the people,” or its frequent proxy, the democratic process, may
come out with a wrong answer at times. According to this view, the
purpose of the Eighth Amendment is to enforce the retributivist constraint, the content of which does not change with the whims of the
democratic majority. This understanding of retribution coheres well
with a common image of constitutional rights in general and of the
Cruel and Unusual Punishments Clause in particular, as the Clause is
typically understood as playing the role of holding the excessive, and
frequently irrational, punitive instincts of “the people” in check by
imposing a moral constraint.

10

11

12

(2008) (remarking that “a plausible retributive justification for the recidivist sentencing
premium has proved as elusive as the legendary resident of Loch Ness”). In a forthcoming article, I attempt to give a retributivist account of the recidivist premium. See Youngjae Lee, Recidivism as Omission: A Relational Account, 87 TEX. L. REV. (forthcoming 2009).
See, e.g., RICHARD G. SINGER, JUST DESERTS: SENTENCING BASED ON EQUALITY AND DESERT
67–74 (1979) (criticizing the imposition of such sentences as “both dubious on its own
merits and seriously inconsistent with the deserts model, at least as perceived by most deserts supporters”); George P. Fletcher, The Recidivist Premium, 1 CRIM. JUST. ETHICS 54, 59
(1982) (noting the difficulty in “accounting for the intuition . . . that the recidivist premium expresses a principle of retributive justice”); Aaron J. Rappaport, Rationalizing the
Commission: The Philosophical Premises of the U.S. Sentencing Guidelines, 52 EMORY L.J. 557,
595 (2003) (“Just desert theorists have far greater difficulty [than utilitarian theorists] in
explaining why criminal history is a relevant sentencing factor.”).
I count myself among those who have made such criticisms. See Lee, supra note 4, at 735
(“From the perspective of retributivism as a side constraint, [California’s ‘three-strikes’
law] is highly problematic . . . .”); see also FRANKLIN E. ZIMRING ET AL., PUNISHMENT AND
DEMOCRACY: THREE STRIKES AND YOU’RE OUT IN CALIFORNIA 121 (2001) (arguing that
the penalties under the law are “nonproportional or indeed antiproportional”); Markus
Dirk Dubber, Recidivist Statutes as Arational Punishment, 43 BUFF. L. REV. 689, 705–07
(1995) (arguing that even if some recidivist statutes have retributivist support, California’s
“three-strikes” law does not); Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1435–37 (2001) (criticizing the
law’s penalties for including a “purely preventive detention portion that cannot be justified as deserved punishment”).
Alice Ristroph, Desert, Democracy, and Sentencing Reform, 96 J. CRIM. L. & CRIMINOLOGY
1293, 1318 (2006).

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A contrasting approach might go as follows. One may believe that
there should not be a gap between what a criminal deserves and what
“the people” believe that a criminal deserves. According to this view,
what an offender deserves is equivalent to what “the people” believe
he deserves, and it is a misunderstanding of desert to believe that
theorists can second-guess desert determinations made by “the people.” If “the people,” or their democratically elected representatives,
think that child molesters deserve to be punished with death, on what
possible grounds can a philosopher or a judge decide that their desert judgment is “incorrect”? If a federal judge disagrees with what
“the people” believe on a question of desert, then so much the worse
for the judge—is it not?
The task of this Article is to evaluate these two approaches to understanding the role of retribution as a constitutional constraint.
And in order to do so, I would like to first answer a related question,
one step removed: What should be the significance of ordinary intuitions about what people deserve when scholars theorize about what
13
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?
I suggest in this Article that the answer is twofold. First, statements about desert that fail to capture the core of ordinary moral intuitions cannot be ultimately successful. Second, at the same time, 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 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. Desert theories must also be able to identify when
a particular desert judgment, while justifiable on desert terms, cannot
be squared with other principles of political morality that we hold
dear, such as human dignity, political equality, and individual autonomy.
By “capturing the core of ordinary moral intuitions,” I do not
necessarily mean to say that desert theories must reproduce the same
conclusions as those that are reflected in ordinary moral intuitions,
13

Of course, I am not the first to ask this question. For a thoughtful take that differs from
mine, see Kenneth W. Simons, The Relevance of Community Values to Just Deserts: Criminal
Law, Punishment Rationales, and Democracy, 28 HOFSTRA L. REV. 635 (2000).

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DESERT AND THE EIGHTH AMENDMENT

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although that is certainly one way of doing it. A theory may also satisfy this standard by correctly articulating the underlying concerns
and commitments that drive common sense notions even if, in the
end, the theory reaches conclusions that differ from common sense
beliefs. When that kind of disagreement occurs, the theory in question may propose a revision of the moral intuitions in ways that preserve the underlying principles and concerns of the problematic intuitions. Or the theory may reject the underlying principles and
concerns as mistaken and demand a straightening of whatever kinks
may be leading one to the wrong moral beliefs. But whatever it does,
a theory of desert must engage and grapple with ordinary moral intuitions and ultimately be judged by how well it illustrates ordinary
moral intuitions or how satisfactorily it revises or replaces them.
Standing apart from such intuitions and ignoring them as primitive
or pre-theoretical is not an option.
There are several reasons why theories of desert must be closely
tied to ordinary moral intuitions. Here I mention three reasons,
rooted in the fact that someone writing about questions of desert and
their applications to the administration of criminal law and the institution of punishment has to wear at least three hats: one as a social
theorist, one as a moral philosopher, and one as a legal scholar.
First, as a social theorist, a scholar studying desert has, as his or
her object of study, a social practice. A social practice has participants, and participants bring to the practice their own understandings of what they are engaged in, and those self-understandings partly
14
constitute the practice itself. From this, it follows that a theory of
social practice that leaves out the understandings of the practice by
the participants themselves—something that H.L.A. Hart called the
15
“internal point of view”—must remain incomplete.
Such self-

14

15

See 2 CHARLES TAYLOR, Social Theory as Practice, in PHILOSOPHY AND THE HUMAN SCIENCES:
PHILOSOPHICAL PAPERS 91, 93 (1985) (“There is always a pre-theoretical understanding of
what is going on among the members of a society, which is formulated in the descriptions
of self and other which are involved in the institutions and practices of that society. A society is among other things a set of institutions and practices, and these cannot exist and
be carried out without certain self-understandings.”).
H.L.A. HART, THE CONCEPT OF LAW 89–90 (2d ed. 1994); see also Scott J. Shapiro, The Bad
Man and the Internal Point of View, in THE PATH OF THE LAW AND ITS INFLUENCE: THE
LEGACY OF OLIVER WENDELL HOLMES, JR. 197, 199–200 (Steven J. Burton ed., 2000); cf.
2 CHARLES TAYLOR, Understanding and Ethnocentricity, in PHILOSOPHY AND THE HUMAN
SCIENCES, supra note 14, at 116, 124 (“Social theory in general, and political theory especially, is very much in the business of correcting common-sense understanding. It is of
very little use unless it goes beyond, unless it frequently challenges and negates what we
think we are doing, saying, feeling, aiming at. But its criterion of success is that it makes

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understandings may be mistaken or delusional, but that does not
mean that they can be simply left out of the picture. Rather, a theory
of desert must be evaluated with reference to the ways in which the
concept is actually used in legal, political, and moral discourse by
16
those who participate in the relevant social practices.
The second reason to take ordinary instincts seriously has to do
with the nature of the subject matter—desert—itself, and understanding desert requires that one adopt the moral philosopher’s perspective. As Joel Feinberg explained in his seminal discussion, desert
statements have the form, “S deserves X in virtue of F,” where S is the
person deserving, X is what he deserves, and F is the desert basis, or
17
whatever serves as the basis for X. The relationship between X, what
is deserved, and F, the desert basis, is that of “fittingness” or “appro18
priateness.” “Fittingness,” in the punishment context, has two dimensions: type and amount. First, when choosing how to respond to
a criminal behavior, it would be “fitting” or “appropriate” only if the
response takes the form that symbolizes or expresses the society’s
19
condemnatory attitude towards the criminal conduct. The second
dimension of “fittingness”—that of amount—refers to the idea that
the harshness of the punishment should reflect our level of condem20
nation or disapproval.
What this means is that the validity of desert judgments turns on
appropriateness or fittingness of responses to desert bases. Such assessment of appropriateness or fittingness, in turn, can be made only
21
within the context of a community of shared values. Given such an

16

17
18
19
20
21

us as agents more comprehensible, that it makes sense of what we feel, do, aim at. And
this it cannot do without getting clear on what we think about our action and feeling.”).
See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 3–4 (1980) (“[H]uman actions,
practices, habits, dispositions and . . . human discourse. . . . can be fully understood only
by understanding their point, that is to say their objective, their value, their significance
or importance, as conceived by the people who performed them, engaged in them, etc.
And these conceptions of point, value, significance, and importance will be reflected in
the discourse of those same people, in the conceptual distinctions they draw and fail or
refuse to draw.”).
JOEL FEINBERG, Justice and Personal Desert, in DOING AND DESERVING: ESSAYS IN THE THEORY
OF RESPONSIBILITY 55, 61 (1970).
Id. at 81–82.
Id. at 67–71; JOEL FEINBERG, The Expressive Function of Punishment, in DOING AND
DESERVING, supra note 17, at 95, 98–99 [hereinafter FEINBERG, Expressive Function].
FEINBERG, Expressive Function, supra note 19, at 118.
See R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 80 (2001); NICOLA LACEY,
STATE PUNISHMENT: POLITICAL PRINCIPLES AND COMMUNITY VALUES 176–77 (1988); see
also ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 250 (2d ed. 2002)
(“[T]he notion of desert is at home only in the context of a community whose primary
bond is a shared understanding both of the good for man and of the good of that com-

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expressive dimension of punishment and what it expresses, it would
not make any sense to attempt to answer questions of who deserves
what without referring to the ways in which the relevant communities
would react to different kinds of stimuli that inspire praise and
blame.
When the subject that is to be studied is punishment, it is especially ill-advised to ignore community sentiments in formulating a
theoretical account of who deserves what punishment. What punishment expresses is not just disapproval, which may be formed from
a distance and in a cold, rationalistic, judgmental manner, but also an
emotive state. Emotions associated with the act of punishing are, for
22
example, anger, resentment, indignation, and hatred. Such emotions may be thought to be subjective or irrational in that they can get
“out of hand,” but because of their cognitive content they can also be
23
evaluated as appropriate or inappropriate, rational or irrational.
When such emotions are felt, their appropriateness can be judged
through reflection, and sometimes inappropriately felt emotions even
disappear once there is a recognition of such inappropriateness, the
way, say, anger at a friend based on a misunderstanding can evaporate once the misunderstanding is corrected. But it would be a mistake to ignore the fact that such emotions are emotions—part of what
Peter Strawson called a “complicated web of attitudes and feelings
24
which form an essential part of the moral life as we know it.” This is
yet another reason why desert theorists cannot afford to dismiss instinctive beliefs held by people at large as “emotional” or “irrational.”

22

23

24

munity and where individuals identify their primary interests with reference to those
goods.”).
See Jean Hampton, Forgiveness, Resentment and Hatred, in FORGIVENESS AND MERCY 35, 54–
79 (Jeffrie G. Murphy & Jean Hampton eds., 1988) [hereinafter Hampton, Forgiveness, Resentment]; Jean Hampton, The Retributive Idea, in FORGIVENESS AND MERCY, supra, at 111,
143–47 [hereinafter Hampton, Retributive Idea]; see also ADAM SMITH, THE THEORY OF
MORAL SENTIMENTS 79–81 (Knud Haakonssen ed., 2002) (1759); Peter Strawson, Freedom
and Resentment, in FREE WILL 72, 75–80, 90–93 (Gary Watson ed., 2003). For a subtle discussion of such feelings, both pointing out their importance for understanding the institution of punishment and warning us against complacently accepting them as moral sentiments as opposed to expressions of cruelty, see DAVID GARLAND, PUNISHMENT AND
MODERN SOCIETY: A STUDY IN SOCIAL THEORY 61–67 (1990).
See R. JAY WALLACE, RESPONSIBILITY AND THE MORAL SENTIMENTS 11–12, 18–19 (1994);
Hampton, Forgiveness, Resentment, supra note 22, at 54 (“Resentment is . . . more than instinctive rage following an attack: it is an idea-ridden response.”); cf. MARTHA C.
NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 24–31 (2004);
MARTHA C. NUSSBAUM, UPHEAVALS OF THOUGHT: THE INTELLIGENCE OF EMOTIONS 19–88
(2001); BERNARD WILLIAMS, Morality and the Emotions, in PROBLEMS OF THE SELF:
PHILOSOPHICAL PAPERS 1956–1972, at 207, 224 (1973).
Strawson, supra note 22, at 91.

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Finally, as a legal scholar, it is important to approach the question
of desert in criminal law not as a freestanding moral philosophy problem, but as a legal problem, and more specifically, as a criminal law
problem. As many have argued, an important function that criminal
law serves is to displace feelings of resentment and desires for vengeance by responding to wrongdoing through the institution of pun25
ishment. It is not just that the institution of punishment has a close
relationship to feelings of resentment, which in itself would make it
important for punishment theorists to pay close attention to popular
sentiments, but it is also that a core purpose of criminal law and punishment is to sublimate those feelings, displace them, and provide an
outlet for them. In other words, whether criminal law succeeds or
fails in a society depends, not entirely of course, but importantly, on
26
how well it responds to the punitive emotions of its citizens.
Of course, there are ways to understand the role of criminal law
that may better fit our self-image as a modern, civilized society, such
as deterrence and rehabilitation, and some readers may also think
that a modern state should play no role in reproducing primitive,
barbaric, uncivilized sentiments like vengeance. It is true that these
emotions can sometimes be ugly and disturbing, and it is also true
that criminal law also serves other functions. However, it would be
misguided to lose sight of the ways in which our institution of punishment both shapes and responds to people’s punitive emotions and
the ways in which such interactions lie at the very core of criminal law
27
and are not a mere incidence of it.
In sum, a legal scholar attempting to answer questions about what
criminals deserve must approach the question as a social theorist, a
moral philosopher, and a legal scholar, and each scholarly perspective leads to an argument for taking ordinary moral intuitions about
desert seriously. A question that consequently arises at this juncture
is: If ordinary sentiments are so important and so central to under-

25

26

27

For a particularly cogent statement of this view, see John Gardner, Crime: In Proportion
and in Perspective, in FUNDAMENTALS OF SENTENCING THEORY: ESSAYS IN HONOUR OF
ANDREW VON HIRSCH 31, 31–33 (Andrew Ashworth & Martin Wasik eds., 1998). See also
EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 11–174 (W.D. Halls trans., Free
Press 1984) (1933). For an excellent, and appropriately critical, discussion of Durkheim’s
views, see GARLAND, supra note 22, at 28–35. For common statements of these views, see,
for example, LACEY, supra note 21, at 34; WILLIAM WILSON, CENTRAL ISSUES IN CRIMINAL
THEORY 74–76 (2002).
Gardner, supra note 25, at 33 (“[T]he criminal law’s medicine must be strong enough to
control the toxins of bitterness and resentment which course through the veins of those
who are wronged, or else the urge to retaliate in kind will persist unchecked.”).
Id. at 33–38.

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standing questions about the deservingness of offenders, what role is
there left for scholars? Is it not the case that what criminals deserve is
simply whatever the people say, as expressed through the democratic
28
processes or as reflected in public opinion surveys? Perhaps, but
there are many problems with this line of thinking. Let me mention
just a few.
First, there is the question of how to interpret legislation and public opinion polls. As mentioned above, the institution of punishment
serves a variety of functions, such as deterrence, incapacitation, rehabilitation, and retribution. The question that we are interested in is
the question of what people deserve, but if a legislature passes, say, a
“three-strikes” law, it is not clear from looking at the end product
which concerns have driven the legislation. For habitual offender
statutes especially, the argument that those who have demonstrated
an inability to live by the rules of society should be isolated can be a
powerful rhetorical tool. It is too quick, though, to jump from a passage of legislation to the conclusion that whatever punishments are
permitted or required by it are what is thought to be deserved by those
offenders subject to it. Public opinion surveys, too, are frequently obscure on whether people’s approval of harsh sentences for repeat offenders reflect their judgments about what repeat offenders deserve,
as opposed to their desire to incapacitate and isolate repeat offenders
from the general population.
In addition, as many have pointed out, there are many reasons to
doubt whether legislation can be relied upon as evidence of what “the
people” see as just outcomes. Voters tend to focus on the most recent
and salient examples of violent crimes, be influenced by the media
and politicians, and frequently support punitive measures that may
go much further than what they otherwise would be willing to sup29
port given additional information. Therefore, desert theorists may
take into account such imperfect measures of public sentiments in
formulating their theories, but such manifestations should be the beginning, not the end, of inquiries about the deservingness of those
who come under the reach of those laws.

28

Ristroph, supra note 12, at 1316 (arguing that this is the implication of “current efforts to
enshrine desert in sentencing policy”).

29

See Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715, 748–54 (2005); Julian V.
Roberts & Anthony N. Doob, News Media Influences on Public Views of Sentencing, 14 LAW &
HUM. BEHAV. 451, 464–66 (1990); Loretta J. Stalans & Shari Seidman Diamond, Formation
and Change in Lay Evaluations of Criminal Sentencing: Misperception and Discontent, 14 LAW &
HUM. BEHAV. 199, 200–01 (1990).

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Second, that a function of criminal law is to displace vindictive
impulses of the public does not mean that the punishment that is
justly deserved is whatever punishment that is perceived to be necessary to satisfy the retaliatory impulses of “the people.” Even though
there is a close relationship between desert and retribution on one
hand, and vengeance and retaliation on the other, we must be careful
not to accept wholesale retaliatory impulses as unfailingly reflecting
correct moral sentiments. Punitive passions may be correctly gener30
ated by one’s sense that a moral wrong has been done, but they can
also be excessive and driven by other less desirable, yet no less common, sentiments such as cruelty, sadism, inhumanity, and—
particularly relevant in discussing criminal justice in the United
31
States—racial hatred and prejudice. In order to place appropriate
proportionality-based limitations on punishment and to filter out the
effects of impulses that should have no place in our administration of
the criminal justice system, punitive emotions felt by “the people”
should be scrutinized carefully and tested against broad principles of
32
desert, both comparative and noncomparative. And it is here that
thoughtful reflections by desert theorists can be helpful.
Finally, even assuming that the ordinary everyday judgments of
“the people” as to what punishments should be imposed on offenders
accurately reflect what offenders actually deserve, we still have to ask
whether such judgments in particular cases are consistent with other
principles of political justice, such as dignity, political equality, individual autonomy, and the rule of law.
It may be argued by some that the democratic processes can protect all relevant interests and that we can trust legislative outcomes as
reflecting the views of “the people” that, all things considered, punishments authorized by said legislations are appropriate. However,
such optimism about the ability of our current political system to reflect all relevant concerns is unwarranted, at least when it comes to
criminal justice. As has been much noted, our system has built-in in33
centives that encourage more and more expansive criminal liability.

30
31

32
33

Hampton, Retributive Idea, supra note 22, at 143–47.
FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALITY 43–49 (Keith Ansell-Pearson ed.,
Carol Diethe trans., Cambridge University Press 1994) (1887); see also Gardner, supra note
25, at 31.
See Gardner, supra note 25, at 38–41; see also Lee, supra note 4, at 708–20.
See William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 529–
33 (2001); see also MICHAEL TONRY, THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN
AMERICAN PENAL CULTURE 196–97 (2004); Barkow, supra note 29, at 748–54; Sara Sun
Beale, What’s Law Got to Do with It? The Political, Social, Psychological and Other Non-Legal

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Politicians cannot appear weak on crime; therefore, there is enormous political pressure to advocate and vote for tougher and tougher
laws governing criminal liability and sentencing. Prosecutors face incentives to reach convictions at the lowest cost—either at trial or
through pleas—which calls for broad definitions of criminal liability
and high sentences. Moreover, for several reasons, including felon
disenfranchisement and the stigma attached to criminals, effective
lobbying on behalf of criminal defendants is difficult. Therefore, we
have reasons to doubt whether fundamental values of political morality are sufficiently protected through the legislative process, and
whether our constitutional structure and the institution of judicial re34
view are designed to deal with such doubts. Here, too, desert theorists can play a role in supplying the broad perspective that may not
always be present in the legislative process or in popular opinion
formation.
What does this all mean for the Cruel and Unusual Punishments
Clause as a retributivist constraint? First, the idea of restraining retribution with retribution may seem nonsensical at first, but the discussion thus far suggests that a constitutional constraint has an important role to play in our criminal justice system. Second, the courts
have to play the delicate balancing act of taking ordinary intuitions
about desert seriously as foundational in giving shape to the retributivist constraint under the Eighth Amendment, while at the same
time keeping the democratic process honest about its motives and
35
warning it against some of the sources of excess punishment.
And how would these considerations apply, for instance, to habitual offender statutes? A full account of the moral ins and outs of the

34

35

Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23, 49–51
(1997); Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement
Discretion, 46 UCLA L. REV. 757, 771–74 (1999); Ronald F. Wright, Three Strikes Legislation
and Sentencing Commission Objectives, 20 LAW & POL’Y 429, 437 (1998) (“When it comes to
statutes involving criminal punishments, legislators have every incentive to announce
more punishment rather than less.”).
See William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL
ISSUES 1, 20 (1996) (“A lot of constitutional theory has been shaped by the idea, made
famous by Carolene Products footnote four, that constitutional law should aim to protect
groups that find it hard or impossible to protect themselves through the political process.
If ever such a group existed, the universe of criminal suspects is it.” (citation omitted));
see also JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
How all this is to be done is, of course, not at all straightforward. I have suggested various
judicially manageable strategies that courts might employ to protect Eighth Amendment
values without being dismissive of popular notions of desert. See Youngjae Lee, Judicial
Regulation of Excessive Punishments Through the Eighth Amendment, 18 FED. SENT’G REP. 234,
234–36 (2006).

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JOURNAL OF CONSTITUTIONAL LAW

[Vol. 11:1

appropriateness of the recidivist premium as a retributivist matter is
36
beyond the scope of this Article. I can at least say this, however. Despite desert theorists’ general dislike of the recidivist premium, it
seems to me that a coherent desert account for it can be given. The
core of the repeat offender’s wrong after conviction and punishment,
I would argue, lies in the offender’s failure to change his life in a way
that steers clear of criminality despite having gone through the process of conviction and punishment. There is extra resentment towards
repeat offenders, and that extra resentment is undeniable and should
not be dismissed lightly. This phenomenon of resentment towards
repeat offenders should be the starting point of the constitutional
analysis.
Having said that, there are reasons to be suspicious of habitual offender statutes, and a closer scrutiny is appropriate. A plausiblesounding argument based on retribution can be deployed to justify
problematic policies that go beyond retributivist limitations. First, a
powerful force that drives habitual offender policies is the desire for
incapacitation and prevention of future crimes. Repeat offenders
should be kept off our streets, people argue, because they have not
been reformed by the criminal process and have shown a propensity
to keep offending. This rationale, however, is based on deterrence
and incapacitation, not on desert and retribution. Even though the
key inquiry here should be our level of confidence in predicting
whether a given individual will reoffend, as opposed to whether a
person deserves to be treated in a certain way, there is a tendency in
popular discourse to move quickly from the proposition that repeat
offenders should be kept away from the general public to the proposition that repeat offenders are thus deserving of harsh punishments.
Second, people argue that repeat offenders have demonstrated
that they are “bad people,” “career offenders,” “hardened criminals,”
and ought to be treated appropriately. This argument sounds more
like an argument based on retribution, but here the legal system must
guard against the temptation to exclude from society those who are
“unlike us.” Given the history of racism and the racial composition of
the prison population today, we have good reasons to be vigilant
about tendencies to quickly label certain offenders as those who are
“not like the rest of us” and to segregate them from mainstream society for the remainder of their lives.

36

For such an account, see Lee, supra note 9.

Dec. 2008]

DESERT AND THE EIGHTH AMENDMENT

113

Finally, we must identify the moment at which the discourse of
just deserts turns into an argument based on the idea of forfeiture.
Versions of the just deserts theory retain the notion of treating offenders as part of the community. The idea would be that a political
community imposes rules to live by on its members, and when a
member fails to live up to the community standard, the community
condemns the failure. Habitual offender statutes, however, sometimes seem as if they are ways of taking away people’s citizenship and
banishing them from the community’s territory. There is a difference between giving people what they deserve and stripping them of
their citizenship, and a constitutional standard based on retribution
must be on the lookout for the moment at which a person who is a
full member of the community whose acts call for condemnation
turns into a person who should not be part of the community at all.
Admittedly, this is not a tidy picture, but there is no way around
the mess. Punishment—intentional infliction of pain and deprivation of liberty by the government on its citizens, and on behalf of its
citizens—is a troublesome practice. And the demands that are put
on it—to “displace” retaliatory instincts of citizens without reproducing their excess, injustice, and inhumanity—are difficult to satisfy. As
John Gardner has aptly put it, “by the nature of the endeavour there
37
is very little margin for error.” 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.

37

Gardner, supra note 25, at 33.

 

 

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