A original look at the Eighth Amendment

Well timed in light of the Supreme Court's cert grant last week on lethal injection, John Stinneford has posted on SSRN this interesting looking article, entitled "The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation."  Here is the abstract:

Very briefly, my argument is that the word “unusual” was a term of art that referred to government practices that deviate from “long usage.”  Under the common law ideology that came to the framers through Coke, Blackstone, and various others, the best way to determine whether a government practice comported with basic principles of justice was to ask whether it enjoyed “long usage” — that is, whether is was continuously employed throughout the jurisdiction for a very long time.  The opposite of a practice that enjoys “long usage” is an “unusual” practice, or an innovation.  The word “unusual” is included in the Cruel and Unusual Punishments Clause to direct courts to give scrutiny to new or innovative punishment practices; the assumption underlying the Clause being that when the government innovates in the realm of punishment, it often does so in the direction of greater cruelty.

The implications of recognizing the original meaning of “unusual” are not merely academic. In recent decades, both Congress and state legislatures have significantly increased the penalties imposed on criminal offenders for a wide range of crimes.  Seven states have imposed the previously unthinkable punishment of chemical castration on sex offenders, and several more are currently debating the imposition of surgical castration — a punishment practice that fell out of usage in England in the 13th century.  Such new punishments are often highly popular, and by that measure they comport with current “standards of decency,” which is the standard the Court now uses to determine whether a punishment violates the Eighth Amendment.  Without a renewed recognition of the significance of the word “unusual,” courts will be powerless when faced with the primary danger against which the Cruel and Unusual Punishments Clause was designed to protect: The tyranny of enflamed majority opinion.