Defining "cruel and unusual"

Chronicle of Higher Education
Friday, January 13, 2006

A glance at the current issue of Policy Review:
Defining "cruel and unusual"

The Supreme Court's torturous interpretation of the Eighth Amendment, which bans "cruel and unusual punishment," is an illogical "cop-out" that ignores the amendment's text, writes Benjamin Wittes, an editorial writer for The Washington Post who specializes in legal affairs. The court's understanding of the amendment, established in a 1958 decision, holds that a punishment is excessive only if it defies "the evolving standards of decency that mark the progress of a maturing society." That view dodges any principled stance, says Mr. Wittes, and invites subjective court rulings by leaving it to justices to gauge America's cultural development. The precedent, "quite simply, suffers from a birth defect," he writes. Justice Antonin Scalia has voiced the loudest dissent to the "evolving standards" stance, arguing that the amendment should ban only the punitive acts that it outlawed upon its adoption, such as drawing and quartering. He reasons that the 1958 precedent fails to protect the public from future, more brutal generations. Mr. Wittes finds that alternative unreasonable, though, and says it is the type of principled stance that, unfortunately, "gives principle itself a bad name." "Construing 'cruel and unusual punishments' as strictly as Scalia does is a little like construing the right to keep and bear arms as limited to such 18th-century firearms as muskets," he writes. Mr. Wittes says the Supreme Court can avoid those jurisprudential black holes by defining "cruel and unusual." Punishment can be a successful deterrent, he writes, but it becomes cruel once it crosses the threshold of senselessness. To avoid arbitrariness, he continues, the court should consider a punishment unusual if it is already illegal in 38 states -- the number required to amend the Constitution. That interpretation would be more adequate than the court's current precedent, says Mr. Wittes. And while the risks of "judicial impressionism" under this framework are not trivial, he says, "neither are they prohibitive."

The article, "What Is 'Cruel and Unusual'?," is available here.

--Jason M. Breslow
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