Reseña de The Antidiscrimination Eighth Amendment.

The Antidiscrimination Eighth Amendment. de Harvard Journal of Law & Public Policy Resumen del Libro

INTRODUCTION What is the Eighth Amendment really about? Members of the Supreme Court in two recent cases offered alternative visions of the Amendment's function. (1) According to Justice John Paul Stevens, "The Eighth Amendment succinctly prohibits '[e]xcessive' sanctions." (2) The Amendment uses this term twice: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (3) Dissenting from the Court's vindication of California's "three-strikes" law, Justice Stevens observed: "It 'would be anomalous indeed' to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment." (4) Justice Antonin Scalia, on the other hand, understands the Cruel and Unusual Punishments Clause of the Eighth Amendment to condemn "only certain modes of punishment." (5) In particular, the Amendment prohibits two categories of punishment: "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," (6) and "modes of punishment that are inconsistent with modern 'standards of decency,' as evinced by objective indicia, the most important of which is 'legislation enacted by the country's legislatures.'" (7) Consequently, Justice Scalia dissented from the Court's conclusion that imposing death sentences on mentally retarded offenders violates the Amendment. (8)

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