ABSTRACT
In such a context, sustainability might plausibly be taken to refer to a variety of physical and social preconditions for stable and orderly development. Despite the unavoidable predicament of fallibility, the aim of constitutions is to ensure societal sustainability, articulating citizens' shared conception of the legal pre-conditions for a just, stable and orderly development. A criminal justice system draws not only on widely shared intuitions on everyday morality about the importance of guilt and responsibility for sanctions against criminal wrongdoing. But also on widely shared intuitions about the importance of proportionate sentencing practices and the effects of such practices on the level of crime The Eighth Amendment's prohibition against cruel and unusual punishment' has consistently been interpreted by the Supreme Court as compatible with the death penalty, albeit with some significant modifications that might indicate a trend towards an alternative, more sustainable overlapping consensus'.
