The Right Coast

January 30, 2005
Cruel and Unusual
By Maimon Schwarzschild

Our colleague Laurence Claus has a fasinating piece in the latest (Fall 2004) Harvard Journal of Law and Public Policy on the meaning of the Eighth Amendment prohibition of "cruel and unusual punishments". (You will have to visit the periodical room of your library to read it: the Journal doesn't post articles online. But you've been meaning to go and look at the Summer 2004 number of the Harvard Journal of Law and Public Policy anyway, to read Michael Novak's assessment of the Iraq war; now you can read two excellent articles in one exciting off-line outing.)

Laurie says that the words "cruel and unusual punishment" could mean any of three things: vicious methods of punishment, punishments that are excessive when compared to what other jurisdictions inflict for comparable offences, or invidiously discriminatory punishments. Laurie produces lots of evidence that what the framers of the Constitution, and their generation, intended was the third: that criminal punishments not be discriminatory. In other words, it is unconstitutional for a disfavoured culprit to be punished -- vindictively -- more severely than another whose case is morally indistinguishable:
To inflict "cruel and unusual punishment" on a person... is to punish that person more harshly than others for morally insufficient reason.
Laurie concludes:
Constitutional meaning is not a creature of linguistic happenstance. Disengaged from history and context, the words "nor cruel and unusual punishments inflicted" may be read to condemn any of three things [noted above]. But that is hardly sufficient warrant for an interpreter of the Constitution to say "We'll have 'em all!" The right interpretation... is a creature of context and history. History reveals that the provision was designed and understood to prevent invidiously discriminatory punishment. The Eighth Amendment is not a chameleon, and its true complexion is much clearer than the Supreme Court has hitherto recognized.
I have a few reservations. First, I'm not sure I am as stern an originalist as Laurie. And second, Laurie acknowledges -- and cites evidence -- that there were growing feelings in the late eighteenth century against vicious and cruel punishments per se. Laurie points specifically to statements along these lines during the ratification debates in Virginia. But this was a phenomenon that went well beyond Virginia, and in fact beyond America and the rest of the English-speaking world. Voltaire was famously revolted by the torture and execution, for blasphemy, of a boy in France in 1766 for failing to doff his hat to a procession of priests: it was this incident, as much as any other, that produced Voltaire's battle-cry of the Enlightenment: "Ecrasez l'infame!" ("Extirpate the infamy"...) I suspect that a deep impulse against this sort of punishment, regardless of any invidious discrimination, may have been more of a conscious motive for the Eighth Amendment than Laurie acknowledges.

But Laurie's piece is provocative, with lots of historical and common-law evidence that I might be wrong. Get out of the house, when you can, and read the whole thing: "The Antidiscrimination Eighth Amendment" by Laurence Claus, Harvard Journal of Law and Public Policy, vol 28 no 1, Fall 2004, p. 119.