« The growing (and justified) complaints about Obama's approach to judicial nominations | Main | Friday forum: What kind of sentence would you give to Roman Polanski? »

October 16, 2009

"Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual?"

The title of this post is the title of this revised article draft via SSRN from Professor Meghan J. Ryan.  Here is the abstract:

There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional.  Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice.  The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence.  While attempting to maintain neutrality on the topic and thus relying almost exclusively on assessing the unusualness of a practice through a purportedly objective assessment of state legislative action, the Court seems to have covertly injected into the equation its subjective views as to what punishments are unconstitutionally cruel. This tension between an objective measure of unusualness and a subjective assessment of cruelty has led the Court to make inconsistent statements about whether the Punishments Clause prohibits only punishments that are both cruel and unusual, or rather prohibits both cruel punishments and unusual punishments.

This Article goes where no other has, identifying and exploring this important question.  After tracing the history of the Eighth Amendment, analyzing the Court's early interpretations of the prohibition on "cruel and unusual punishments," and parsing the text of the Punishments Clause, the Article concludes that the Clause prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed.  While this interpretation may narrow the scope of the Amendment, it allows for further innovations in humane methods of punishment and revives the federalist foundation of this nation that the Court's current jurisprudence has stifled.

October 16, 2009 at 01:30 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual?" :


The ambiguity generates legal disputes and lawyer fees. Their federalist reputation is a lying piece of propaganda put out by the CCE. They micromanage the criminal law, a state function, these incompetents.

It does not matter, anyway. The Justices interpret this Amendment as permitting their imposing their personal tastes, feelings, arbitrary biases on the nation, without benefit of state legislation. The most annoying is that weasel, Justice Kennedy. Conservative and PC simultaneously. That way, he can escape criticism. He is more far out to the left and America hating than a Lesbian Critical Studies confab on the Cape.

No one is saying, your incompetence allows 23 million FBI Index felonies a year. Everyone accepts the domination of the criminal law of these incompetents. Why? Their idiotic pro-criminal, anti-victim decisions generate lawyer jobs, grow government. Government is a wholly owned subsidiary of the CCE. The Court is looking out only for the interests of the CCE, almost never for those of the public.

For example, they said, mental retardation, as measured on a standard test, precludes the death penalty. That score is no longer the definition of MR. The murderer was in the drug business since age 9, and doing very well. He likely had a higher after tax income as a child than the Justices. School time was costing him money, so he never attended. That explains the poor performance on the test, along with just faking. I invite all the slick lawyers on the Court to run a drug business in his area. See how much IQ it burns up.

Posted by: Supremacy Claus | Oct 17, 2009 8:58:43 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB