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October 2, 2007

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.

October 2, 2007 at 10:35 AM | Permalink


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I'll be interested to read that. The constitutional text requires "cruel and unusual." Were the kinds of tortures common in the 17th Century, barely a hundred years earlier, but long thought to be forbidden by the Amendment, "unusual" by the end of the 18th? What about, say, burning at the stake, practiced at Salem in 1692 or so?

Posted by: Dcounsel | Oct 2, 2007 11:44:17 AM

Strangely enough in the 2d-revised torture memo (which itself had a sneaky out for some kinds of torture of those people), there was a lot of citations to a fairly good book on torture.


Langbein, John H. Torture and the Law of Proof: Europe and England in the Ancien Regimé.


This book was one of the best I read in the past few years, and I would suggest that everyone read it.

Posted by: S.cotus | Oct 2, 2007 12:48:09 PM

I'll jump right on that S.cotus... ss soon as I finish that Lindsay Lohan tell-all biography.

Posted by: dweedle | Oct 2, 2007 5:08:33 PM

It's an interesting theory, and efforts to impose meaningful constitutional limits on excessive punishment certainly need all the help they can get. It's bit troubling, though, to concede that any cruel measure is OK (no matter how excessive it may be relative to desert, to the minimal practical benefits, or to much less severe but equally effective measures) provided that the cruel measure is not an innovation (so, for example, states are free to go right on executing juveniles). And although "evolving standards" about what is cruel may be difficult to define and defend, is it really that much easier to decide what degree of penalty "innovation" is constitutionally prohibited? A third problem is what to make of all the state constitutions that prohibit cruel OR unusual punishments (my RA and I counted 19, earlier this year). My impression is that many of these state documents go back to the 19th Century, and some may even predate the Eighth Amendment. Do these constitutions purport to ban "innovative" punishments, whether cruel or not? (We also found six additional states that only prohibit cruel punishments.)

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