The Eighth Amendment

This essay concerns the original meaning of the Cruel and Unusual Punishments Clause. It argues that the Constitution should be interpreted in accordance with its original public meaning, and it demonstrates what effect such an interpretation would have in the real world. 

In recent years, some judges and scholars have argued that the meaning of the Constitution should change as societal values change. For example, Chief Justice Earl Warren once famously wrote that the Cruel and Unusual Punishments Clause should “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles (1958). This approach allows the Supreme Court to get to whatever result it considers desirable, regardless of what the text of the Constitution actually means. If the Court wanted to get rid of the death penalty, for example, it could simply announce that the death penalty no longer comports with current “standards of decency,” and thereby abolish it. Originalists object to this approach for many reasons, including the fact that it is inconsistent with democratic principles and the rule of law. Phrased differently, there is nothing in the Constitution that gives unelected judges the authority to overturn laws enacted by democratically elected legislatures, based on the judges’ own subjective ideas of what current “standards of decency” require.

In response to the non-originalist approach to the Constitution, some judges and scholars – most prominently Justices Scalia and Thomas – have argued for a very narrow approach to original meaning that is almost willfully indifferent to current societal needs. To understand their approach, let us revisit the four questions raised in the joint statement concerning the settled history and meaning of the Eighth Amendment: (1) What standard should the Court use in deciding whether a punishment is unconstitutionally cruel? (2) Does the Cruel and Unusual Punishments Clause only prohibit barbaric methods of punishment, or does it also prohibit punishments that are disproportionate to the offense? (3) Does the Cruel and Unusual Punishments Clause prohibit the death penalty? (4) Are some modern methods of punishment – such as the extended use of solitary confinement, or the use of a three-drug “cocktail” to execute offenders – sufficiently “barbaric” to violate the Eighth Amendment? 

Justices Scalia and Thomas argue that the four questions raised above should be answered as follows: (1) The standards of cruelty that prevailed in 1791, the year the Eighth Amendment was adopted, provide the appropriate benchmark for determining whether a punishment is cruel and unusual. If a punishment was acceptable in 1791, it must be acceptable today. (2) The Clause prohibits only barbaric methods of punishment, not disproportionate punishments. A life sentence for a parking violation, for example, would not violate the Constitution. (3) The Cruel and Unusual Punishments Clause does not prohibit the death penalty, because capital punishment was permissible in 1791, and because the text of the Constitution mentions the death penalty. Specifically, the Fifth Amendment commands that “No person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life . . . without due process of law.” If the death penalty were unconstitutional, they argue, it would not be mentioned in the Constitution. (4) Modern methods of punishment may violate the Cruel and Unusual Punishments Clause only if they are deliberately designed to inflict pain for pain’s sake, and are objectively harsher than punishments permissible in 1791. Since flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century, few modern forms of punishment are likely to fall into this category.

My own research into the original meaning of the Cruel and Unusual Punishments Clause shows that Justice Scalia’s and Thomas’s approach has a fatal flaw: It ignores the meaning of the word “unusual.” Their decision to ignore this word makes sense because there seems to be no connection between a punishment’s rarity and its cruelty. In other words, a common punishment might be more cruel than a rare one: For example, it would be more cruel to commit torture on a mass scale than on rare occasions, not less. But in reality, the word “unusual” in the Eighth Amendment did not originally mean “rare”– it meant “contrary to long usage,” or “new.” A punishment is cruel and unusual if it is “cruel in light of long usage” – that is, cruel in comparison to longstanding prior practice or tradition. 

This understanding of the original meaning of the Cruel and Unusual Punishments Clause leads to very different results than either the non-originalist approach or Justices Scalia’s and Thomas’s approach. The best way to understand this is to run through those four questions once again, using our new understanding of the original meaning of the Clause: 

(1) The appropriate benchmark for determining whether a punishment is cruel and unusual is neither the subjective feelings of the current Supreme Court nor the outdated standards of 1791. Rather, the benchmark is longstanding prior practice. If a given punishment has been continuously used for a very long time, this is powerful evidence that multiple generations of Americans have considered it reasonable and just. This does not mean that any punishment that was once part of our tradition can still be used today.  If a once-traditional punishment falls out of usage for several generations, it becomes unusual. If a legislature then tries to reintroduce it, courts should compare how harsh it is relative to those punishment practices that are still part of our tradition.

(2) The Clause prohibits disproportionate punishments as well as barbaric methods of punishment. If a punishment is significantly harsher than punishments traditionally given for the same or similar crimes, it is cruel and unusual, even though the same punishment might be acceptable for other crimes. For example, it would be cruel and unusual to impose a life sentence for a parking violation, but not for murder. 

(3) The death penalty is currently constitutional because it is a traditional punishment that has never fallen out of usage. If it fell out of usage for multiple generations, however, it might become cruel and unusual. This has already occurred with respect to some once-traditional applications of the death penalty. It is no longer constitutional to execute a person for theft, for example, because this punishment fell out of usage for this crime a long time ago, and the punishments that have replaced it are far less severe. 

(4) Some new punishment practices, such as lethal injection or long-term solitary confinement, appear to pose a risk of excessive physical or mental pain. If a court were to find that their effect is significantly harsher than the longstanding punishment practices they have replaced, it could appropriately find them cruel and unusual.

In 1804, Aaron Burr, the sitting Vice President of the United States, shot and killed Alexander Hamilton in a duel that took place in New Jersey. Burr ran for governor of New York and Hamilton – widely considered the most influential “founding father” of the United States – opposed his candidacy, making public remarks that Burr found insulting. Burr lost the election, and he blamed Hamilton, so he challenged Hamilton to a duel. Dueling had a long history in the United States; in fact, Hamilton’s son had died in a duel a few years earlier. Dueling continued in the United States until the mid-19th century. Burr was never prosecuted for the murder of Hamilton. After Hamilton’s death, many religious leaders began arguing for the abolition of dueling the way some people now seek the abolition of the death penalty.

Today, dueling is deemed unconscionable. No American leader could credibly support dueling as an acceptable method for resolving conflicts. It is hard for us now to understand how the Framers of our Constitution could embrace such a misguided and barbaric practice. It is unfathomable to us today that those who drafted our nation’s charter nonetheless accepted human slavery, denied women equal treatment and the right to vote, and violently removed Native Americans from their land in what many historians now characterize as genocide. Neither the Constitution’s Framers nor the document they created was flawless. To become a great country, America needs its laws and basic constitutional principles to evolve as our understanding of human capacity and behavior deepens. For many, this means it is critical to reject efforts to limit constitutional protections to the “original intentions” of the flawed men who wrote the Constitution.

The greatness of our Constitution and America itself is dependent on how the Constitution is interpreted to ensure that all people are treated equally and fairly and have the same opportunity to exercise the rights to life, liberty, and the pursuit of happiness as the exclusive group of men who authored the Constitution. As our notions of fairness, equality, and justice have evolved, so too must our interpretation of the Constitution. No provision of the Constitution enshrines this principle more clearly than the Eighth Amendment. 

Progressive perspectives on the Eighth Amendment insist that “evolving standards of decency” must shape and inform the Supreme Court’s application of the Eighth Amendment. Focusing on the original intentions of “Founding Fathers” cannot resolve important questions about punishment today.

This approach begs complex questions, such as who decides what is decent and what is cruel? Some Supreme Court justices believe it is the Court’s responsibility to make these decisions independently, because a punishment may be cruel and unusual even if it is popular among the general public and even if a legislature has deemed it appropriate. Throughout its history, the Court has ruled that certain practices are unconstitutional or indecent even when such practices were popular. Ending racial segregation in schools or restaurants and striking down bans on interracial marriage never could have been achieved by a popular vote in the American South. Black people were a political minority, and policies that denied their basic rights were extremely popular. Accordingly, progressives believe the Court must protect the disfavored, the unpopular, the minority groups who can expect no protection from officials elected by majority vote. For progressives, what constitutes cruel punishment cannot be resolved by opinion polls or the popularity of the punishment. The legitimacy of a punishment must be assessed instead by evaluating whether it serves an appropriate and acceptable penological purpose.

In this respect, the Eighth Amendment does not merely prohibit barbaric punishments; it also bars disproportionate penalties. A sentence of life imprisonment without parole may be acceptable for some crimes, but it would violate the Constitution to condemn anyone to die in prison for shoplifting or simple marijuana possession. For progressives, the constitutionality of a particular punishment cannot be evaluated in the abstract. The decency or legitimacy of a punishment can be assessed reliably only in context.

I believe that the question whether the death penalty violates the Eighth Amendment cannot be resolved by simply asking whether a person deserves to die for the crime he has committed. I believe we must first ask whether we deserve to kill. If we have a death penalty that is applied in a racially discriminatory manner, where the race of the victim shapes who gets the death penalty and who does not; if we have a death penalty that is imposed not on the rich and guilty but on the poor and innocent; if we execute people with methods that are torturous and inhumane, then we have a death penalty that violates the Eighth Amendment. Since the modern era of capital punishment in the United States began in the 1970s, 154 people have been proven innocent after being sentenced to death.  We have executed more than 1400 people during the same time period. For every nine people executed, one innocent person has been exonerated. For progressives, this is an unacceptably high rate of error: The probability that an innocent person has been or will be executed offends our standards of decency, and renders the death penalty cruel and unusual punishment that violates the Eighth Amendment. Fairness, reliability, racial discrimination, bias against the poor, political arbitrariness, and other factors that did not trouble the framers of the Constitution, nonetheless shape how a decent society must interpret the Eighth Amendment today.

Finally, evolving standards of decency will require the Court to prohibit many modern punishments that didn’t exist in the eighteenth century, like solitary confinement or death-in-prison sentences for children or the mentally ill. For progressives, the Constitution must evolve and be interpreted so that the rights of people who are less favored, less protected, and less influential are not sacrificed to serve the interests of the powerful and the popular. The framers of the American Constitution should be celebrated for creating a prohibition on punishments which are cruel and unusual; but it is incumbent on all of us to insist on a Court that applies the prohibition fairly, sensibly and justly for an evolving nation.