The Illusory Eighth Amendment

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.INTRODUCTIONThe Supreme Court's current approach to the Eighth Amendment is often described as a paradigm of improper judicial legislation.1 The Court has invalidated the sentencing practices of dozens of states and the federal government by declaring that imposition of the death penalty or life sentences with no possibility of parole for various classes of offense or offender is unconstitutional,2 while boldly proclaiming its own independence from the Eighth Amendment's original meaning3 and even-increasingly-from current societal standards of decency.4 It is less often noted, however, that these decisions cover only a tiny subset of felony cases. Outside this group, the Court takes precisely the opposite approach to claims of excessive punishment. It not only refrains from judicial legislation, but has abandoned judicial review altogether.5 In such cases, the Court defers to the legislature not only as to whether a given punishment is excessive, but as to the definition of excessiveness itself.6The appearance of judicial activism has provoked inter-branch resentment and reaction, fueling our ongoing societal pathology of overcriminalization and overpunishment.7 The extreme deference underlying this appearance has prevented the courts from protecting criminal offenders from the harsher sentences that this pathology has caused.8 For most offenders, the Eighth Amendment is an illusion, and a harmful one at that.This Article shows that the illusory Eighth Amendment is the result of the Supreme Court's decision to use implementation rules as a substitute for constitutional interpretation. For the purposes of this Article, an implementation rule is a rule for adjudicating constitutional cases that is not itself required or logically entailed by the meaning of the Constitution. Over the past thirty years, scholars have shown that implementation rules are a necessary and even ubiquitous feature of constitutional adjudication.9 The primary purpose of such rules is to minimize cost, including both the cost of adjudicative error and the social cost arising from the underlying constitutional violation.10Surprisingly, the implementation rules literature has paid little attention to the nature of constitutional interpretation beyond defining it as the effort to determine constitutional meaning. …