Salon - It’s hard to believe that the United States’ vast prison archipelago, holding roughly 2.2 million human beings in cages, somehow squares with the constitutional prohibition on “cruel and unusual punishment.” To many eyes, it is both of those things: The system is fueled by statutes prescribing long sentences that are both extreme and by comparison odd for crimes both minor and major. . .
But narrow majorities on the Supreme Court led by recently-deceased Justice Antonin Scalia haven’t seen it that way. Scalia, reaching back to the 18th century as he liked to do, pushed the Court to adopt a maximally restrictive few of what kind of punishment could be so grossly disproportionate so as to run afoul of the Constitution. In practice, he found nothing that would qualify. Replacing Scalia with a more humane, less hidebound justice could allow the Court to take a more expansive look at the Eighth Amendment and, in doing so, do something quite radical: help end mass incarceration. In could also end the death penalty, something that Justices Stephen Breyer and Ruth Bader Ginsburg have strongly suggested they are ready to do.