"Punishment" and the Eighth Amendment

Eighth Amendment doctrine may be headed for a showdown.The Supreme Court has unduly softened the Amendment's central limitation: its applicability to nothing but "punishments." 1 This prerequisite is finessed m cases involving conditions of confinement and is ignored in cases involving use of force.As a result, Eighth Amendment doctrine lacks a backbone of principle.This Article offers a few doctrinal repairs that would restore punishment as a threshold element m Eighth Amendment cases, and thus put sense back m the interpretation and application of a great constitutional protection.The Eighth Amendment-like so many other constitutional provisions 2underwent dramatic liberalization during the twentieth century 3 That is good to the extent that constitutional liberties have been made real in the lives of ordinary citizens who formerly could look to the Constitution as a source only of aspiration and not of protection.4 But liberalization has its limits, and