Who are the Punishers?

Abstract

The Eighth Amendment is a list of deeds not to be done, but it does not say who is not to do them. This Article specifically examines whom the Eighth Amendment bars from inflicting cruel and unusual punishments. The Supreme Court has thus far applied the Eighth Amendment to a narrow class of parties, consisting of just legislatures, criminal courts, and those who execute punishment such as prison officials. Under the framework presented in this Article, the class of potential punishers should be much wider. Those who work in jails and other detention centers, public and private school officials, and even parents of juveniles should be considered potential punishers for Eighth Amendment purposes.

Keywords: Eighth Amendment, Punishment, Constitutional Interpretation, Pragmatism