Cruel and Unusual Punishment

Concluding that solitary confinement is a separate punishment as a matter of constitutional law which requires both a preexisting penal statute and a lawful sentence before it can be imposed. Rejecting the concept that the Supreme Court has adopted in recent years that solitary confinement can be imposed on the administrative discretion of prison administrators.

Cataloging and critiquing Justice Scalia’s Eighth Amendment “cruel and unusual punishments” jurisprudence, arguing that it is largely faint-hearted or sake-of-argument originalism. Noting that the Eighth Amendment evolved further from its original meaning via the “evolving standards of decency” test and that Scalia predicted that capital punishment itself might be invalidated.

Exploring how new methods of punishment, including those intended to be humane or progressive, can be evaluated via “usage over time” to determine compatibility with the Eighth Amendment. Advancing two types of data to indicate the usage over time: whether the punishment has received stable reception from society, and the extent to which their harsh effects are demonstrated compared with older practices.

Arguing that both Scalia’s originalist approach and the Court’s majority non-originalist approach to the Eighth Amendment read the word “unusual” out of the clause, which is key to understanding it. Drawing on originalist sources such as Blackstone and Founding-Era writings to argue that “unusual” largely served to prevent against “innovative” punishments levied by the sovereign. Analyzing the original public meaning of “unusual” and concluding that it means “contrary to long usage” rather than “out of the ordinary.”

Rejecting a “cruel intent” understanding of the word “cruel” and providing evidentiary support for a more appropriate “cruel effect” understanding held by the Framers.

Positing a new form of originalism (“enlightened originalism”) that allows the text to accommodate how morality has changed over time. Arguing that the Court’s “evolving standards of decency” approach represents enlightened originalism because it recognizes that cruelty embodies a moral judgment that changes as societal mores change.

Arguing that the Cruel and Unusual Punishments Clause was intertwined with pre-and post-Revolutionary ideas about how slaves could be treated. Arguing that the Clause admits of a proportionality principle based upon how it was interpreted with respect to slaves. Looks to Founding-Era jurisprudence surrounding slaves to analyze the early law of punishment. Concluding that cruel and unusual speak not only to the mode of punishment but to its excessiveness and that our “standards of decency” have not really evolved considering the way slaves were treated versus how prisoners are treated today.

Critiquing Justice Scalia’s originalism in Harmelin v. Michigan, which held that the original meaning of “cruel and unusual” did not include a proportionality requirement. Looking to Founding-Era precedent, state bills of rights, and other originalist sources. Concluding that Justice Scalia selectively applied the record and that a proportionality concept is consistent with an original understanding of the Cruel and Unusual Punishments Clause.

Arguing that the Cruel and Unusual Punishments Clause also incorporates the idea of desuetude. Arguing that the death penalty could be subject to this idea if it were not used for generations. Citing Founding-Era sources, such as the works of James Wilson.

Arguing that constitutional interpretation must take priority over constitutional implementation. Positing that the Supreme Court has not interpreted the Cruel and Unusual Punishments Clause but has instead devised implementation rules divorced from constitutional meaning. 

Positing many issues with the Court’s use of proportionality and expansion of “excessiveness” in interpreting the Eighth Amendment. Arguing that the original meaning of the Cruel and Unusual Punishments Clause was to prohibit both barbaric and excessive punishments, thus legitimizing the proportionality approach. Drawing on early case law, Founding-Era legislation, and pre-founding sources such as the English Bill of Rights.

Arguing that originalists have failed to consider the Thirteenth Amendment’s allowance for criminals to be punished with slavery when interpreting the Eighth Amendment’s prohibition on cruel and unusual punishment.

Employing original intent originalism to conclude that restricting the meaning of the Cruel and Unusual Punishments Clause to Founding-Era practices is wrong. Examining the history of the death penalty to conclude that it could be considered cruel and unusual in a manner consistent with the Framers’ original intent. 

Arguing that the Framers misinterpreted English law, specifically the English Bill of Rights, when they drafted the Cruel and Unusual Punishments Clause to prohibit certain methods of punishment.