Professor Scott Howe’s article “
The Eighth Amendment as a Warrant against Undeserved Punishment
” was published in the
William & Mary Bill of Rights Journal
(Volume 22, Issue 1, Page 91, October 2013).

Excerpt from the abstract:

howe-william-journal-cover“Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive. A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, this view of the Eighth Amendment challenges many current criminal-law doctrines and sentencing practices that favor crime prevention over retributive limits. Mistake-of-law doctrine, felony-murder rules and mandatory-minimum sentencing laws are only a few examples. Why have these laws and practices survived? One answer is that the Supreme Court has largely limited proportionality relief to a few narrow problems involving the death penalty or life imprisonment without parole, and it has avoided openly endorsing the deserts limitation even in cases in which defendants have prevailed. Yet, this Article presents a deeper explanation. I point to four reasons why the doctrine must remain severely stunted in relation to its animating principle. I am to clarify both what the Eighth Amendment reveals about the kind of people we want to be and why the Supreme Court is not able to force us to live up to the aspiration.”

View the full publication


Scott Howe

Professor Scott Howe
is the Frank L. Williams Professor of Criminal Law at Chapman University Dale E. Fowler School of Law. He has been a professor at Fowler School of Law since August 1996. He has substantial experience both as a criminal defense lawyer and as a teacher in the fields of criminal law, criminal procedure and evidence. Professor Howe has worked as an attorney for the Public Defender Service for the District of Columbia, as Deputy Director of the Texas Death Penalty Resource Center, as an adjunct professor at the University of Texas Law School and a tenured full professor at Western New England College School of Law. At Chapman, he has twice been voted Professor of the Year by the student body. His articles have appeared in a variety of leading law journals, including the
University of Pennsylvania Law Review
, the
Iowa Law Review
, and the
Vanderbilt Law Review
. He is also a co-author of the second edition of Understanding Capital Punishment Law, a treatise published in 2012 by
. Professor Howe served as Associate Dean for Academic Affairs from 1999 to 2007 and Interim Dean from 2010 to 2011.

See more of
Professor Howe’s writings