Sound principles, undesirable outcomes: Justice Scalia's paradoxical eighth amendment

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights. Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment which the state can inflict on criminal offenders. Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.” A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and rights (including prisoners’ rights) arguably put this characterization in a different light. While Justice Scalia may have been a foe of a move to less harsh sentencing and expansive rights to prisoners, there is an underlying coherence to some of his key decisions that is underpinned by the provisions he was applying and, even more so, the logical and normative contents or vagueness of the concepts under consideration. In relation to the proportionality principle, both philosophy and an underlying coherency in the approach to statutory and constitutional interpretation support the position adopted by Justice Scalia. The contrary is the situation in relation to Justice Scalia’s position on prisoners’ rights. However, the criticism of Justice Scalia regarding his approach to Eighth Amendment issues in the context of prisoners’ rights has been overstated. The views he espoused in this context are shared by the majority of the Supreme Court. From the perspective of interpreting the Eighth Amendment in a manner which would result in a moderate or lenient approach to the punishment of offenders, Justice Scalia was a foe of criminal law and procedure. However, his judgments in this context reveal he was a friend to adopting a rigorously consistent conservative approach (non-outcome driven) to statutory and constitutional interpretation.