State-Imposed Punishment
The Constitution’s Eighth Amendment prohibits cruel and unusual punishments. Judicial interpretation of this vague language reins in state power in many respects. It is far from completely satisfactory, however. The Court has held capital punishment to be
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Even when it is justified, punishment remains problematic. This is because punishment consists of a condemnatory deprivation. Standing alone, any exercise in condemnation is troubling since it involves criticism by one person of another’s shortcomings. When coupled with a deprivation, condemnation is particularly troubling. And when carried out by the most powerful of all social institutions—the state—even justified punishment stands out as the most problematic feature of the government’s exercise of its legitimate authority. To note these points isn’t to suggest that state-imposed punishment should be abolished. Rather, it’s to introduce a note of caution when thinking about the scope of the state’s exercise of power, for punishment carried out in the name of the government can produce unacceptable results at both the individual and institutional level. As far as individuals are concerned, it’s possible for officials charged with operating penal institutions to claim they are merely fulfilling a legal duty when they in fact enjoy dominating and degrading those in their care. As far as institutions are concerned, the government can use its power to confine huge portions of the population, all in the name of social control.
© The Author(s) 2019 W. C. Heffernan, Rights and Wrongs, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-030-12782-4_7
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Because the Constitution’s Eighth Amendment prohibits cruel and unusual punishments, it might be argued that there is no need to inquire independently into questions about justice and state-imposed punishment. The answer to this objection relies on the premise that informed the previous chapters. It is that we should keep an open mind about whether the Constitution, as interpreted by the courts, adequately tames state power. That it provides a tool for doing so doesn’t mean that it succeeds. In thinking about state-imposed punishment, we of course will have occasion to consider case law bearing on it. We should not, however, assume in advance that Supreme Court decisions interpreting the Eighth Amendment offer definitive answers as to the proper limits of state punitive power. Indeed, because the United States imprisons a higher percentage of convicted offenders than any other industrialized country,1 we will have good reason to question the Court’s conclusions concerning the Eighth Amendment. Judicial interpretation of the Constitution, we will see, leaves much to be desired if the goal is to tame state power. A focus on justice serves as a much-needed corrective to the incarceration policies adopted by most American jurisdictions.
Whether, What Kind, and How Much Questions Bearing on Punishment To understand why this is so, we should return to the lex talionis framework of eye for eye, tooth for tooth. Lex talionis offers a straightforward way to resolve grievances. It does so by insisting on a tight fit between one person’s act and another person’s response to that act— on equivalence between harm suffered and harm inflicte
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