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Depending on the health and position of society, and the manner in which globalization has changed the way America is perceived in the world, and perceives itself, a change in attitude regarding the rubric of punishment is part of the way society defines itself. Thus, the importance of the interpretation of this amendment cannot be underemphasized -- and now, with a new Supreme Court Justice, the balance may well change as to the interpretation. As one legal scholar noted,
As with cruelty, the precise contours of the definition of unusualness can be developed only through case law;...
What we can insist on prospectively, however, is that the two terms be defined in some way as to offer some predictability as to which punishments will be upheld and which struck down and to provide some doctrinal constraint on judicial policymaking and discretion.
In other words, how the court decides these cases -- and most cases, for that matter -- is ultimately more important than the substance of what it decides. In no area of law has the court more completely lost sight of that basic truth than the Eighth Amendment. But it is never too late to put the train back on the tracks (Wittes, 2005).
REFERENCES
Amar, A. (2000). The Bill of Rights: Creation and Reconstruction. Yale University Press.
Bodenhamer, D. And J. Ely. (1993). The Bill of Rights in Modern America. Indiana Cusac, A. (2009). Cruel and Unusual: The Culture of Punishment in America.
"English Bill of Rights." (n.d.). Constitution.org. Cited in:
http://www.constitution.org/eng/eng_bor.htm
Wittes, B. (2005). "What is "Cruel and Unusual?" Policy Review. 134(2005): 15.
REFERENCES
Amar, A. (2000). The Bill of Rights: Creation and Reconstruction. Yale University Press.
Bodenhamer, D. And J. Ely. (1993). The Bill of Rights in Modern America. Indiana Cusac, A. (2009). Cruel and Unusual: The Culture of Punishment in America.
"English Bill of Rights." (n.d.). Constitution.org. Cited in:
http://www.constitution.org/eng/eng_bor.htm
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