"The Original Meaning of 'Cruel'"

The title of this post is the title of this notable new article by John Stinneford now available via SSRN.  Here is the abstract:

This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.”  The word refers to the effect of the punishment, not the intent of the punisher.  In prior articles, I have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.

This Article solves several important problems plaguing the Supreme Court’s Eighth Amendment jurisprudence.  First, it clarifies the Eighth Amendment’s intent requirement.  To violate the Cruel and Unusual Punishments Clause, some government official must possess intent to punish but not necessarily intent to punish cruelly. Second, it demonstrates how to determine whether a given punishment is so harsh that it violates the Eighth Amendment.  The question is not whether a punishment is unjustly harsh in the abstract but whether it is unjustly harsh in comparison to the traditional punishment practices it has replaced.  Third, it shows how to sort between those unintended effects of punishment that may properly be considered part of the punishment and those that may not.  If a given punishment heightens the risk of severe, unjustified harm significantly beyond the baseline risk established by longstanding prior practice, it is cruel and unusual.  

Finally, this Article establishes that the core purpose of the Cruel and Unusual Punishments Clause is to prevent unjust suffering, not the coarsening of public sensibilities.  Historically, governmental efforts to protect public sensibilities by making punishment less transparent have increased the risk that the offender will experience undetected cruel suffering.  When the government undertakes such efforts, it should bear the burden to show that they do not significantly increase this risk.

The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, long-term solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.