Cleaning Up the Eighth Amendment Mess


This article criticizes the Court’s interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and proposes its own understanding. The Court’s jurisprudence is plagued by deep inconsistencies concerning the text, the Court’s own role, and a constitutional requirement of proportionate punishment.

In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations: 1) A textualist approach; 2) Justice Scalia’s understanding that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the State constitutions they wrote, the Founders used the phrases “cruel and unusual”, “cruel or unusual”, and “cruel” interchangeably as referring to a unitary concept. An inflexible textual requirement that an unconstitutional punishment be both cruel and unusual would make little sense as a matter of interpretation or principle. Contrary to Justice Scalia’s view, historical evidence ranging from the English Bill of Rights to the first federal criminal code reveals that the Founders endorsed proportionality on both subconstitutional and constitutional levels. A majoritarian approach does little little to cabin judicial subjectivity. In addition, the systemic insensitivity of political processes to offenders’ interests can manifest itself in undue generality, excessive pursuit of deterrence and incapacitation, inadequate funding, and desuetude. These problems can produce gratuitously harsh punishment that merit judicial attention.

The article proposes an understanding of the Eighth Amendment organized around the notion of cruelty. Contrary to the Court’s view, which holds that punishment may be supported solely by the utilitarian objectives of deterrence and incapacitation, the article maintains that punishment must be reasonably believed to be consistent with giving the offender his just deserts. It suggests that the term “unusual” play an evidentiary rather than a definitional role and argues for a more nuanced assessment of legislative judgments and majoritarian practice. The article applies its proposed understanding to several issues, including the abolition of the insanity defense, the use of strict liability, and Roper v. Simmons’ ban against the execution of juveniles younger than 18.


Civil Rights and Discrimination | Constitutional Law | Criminal Law | Criminal Procedure | Legal History

Date of this Version

March 2005