University of Pennsylvania Journal of Constitutional Law
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 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 desertjudgment, 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.
Desert and the Eighth Amendment Symposium: Cruel and Unusual Punishment: Litigating under the Eighth Amendment, 11 U. Pa. J. Const. L. 101 (2008-2009)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/443