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Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?

By Douglas A. Berman

Having now had a chance to read and reflect on Justice Thomas's dissent in the Graham Eighth Amendment case, I am back to using the tasty term Graham crackers to flag what I view to be the really deep and really hard (and thus really tasty) intellectual questions that Graham raises.  Specifically, as flagged by the title of this post, I am wondering if all originalists agree with Justice Thomas's seeming conclusion that the LWOP sentence at issue in Graham is obviously constitutionally sound.  There are two aspect of this question I wish here to unpack. 1.  Might an originalist see extreme incarceration as a worrisome "method" of punishment?:   A key move in Part II of Justice Thomas's dissent is to assert that Eighth Amendment proportionality analysis is an improper jurisprudential creation by the modern Supreme Court...continue to full post

Full post as published by Sentencing Law and Policy on May 19, 2010 (boomark / email).