Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment by John D. Bessler (review)

“Nor shall cruel and unusual punishment be imposed.” Professor Bessler, an associate professor at the University of Baltimore School of Law and an adjunct professor at the Georgetown University Law Center, focuses on these final eight words of the Eighth Amendment to the United States Constitution in his book Cruel and Unusual. This clause, applicable to the States via the Due Process Clause of the Fourteenth Amendment, is the only Constitutional limitation on the federal and state governments’ authority to punish its citizens.

The Eighth Amendment also places substantive, but unspecified limitations, on bail and fines. While the imposition of bail or a fine can give rise to important questions, the cruel and unusual punishment clause is the constitutional workhorse of the Eighth Amendment. This clause has been interpreted by the United States Supreme Court to require that the punishment of non-capital crimes be proportional, to require that the treatment of prisoners and the conditions of confinement be humane, and to prevent the use of torture or other unnecessarily painful treatment as punishment.

The Cruel and Unusual Punishment Clause is, most importantly, the constitutional provision that the United States Supreme Court has relied on to govern and give meaning to the use of the death penalty in the United States, both the methods of execution and the procedures by which the penalty may be imposed during the trial process. The opinions issued by the Supreme Court on the death penalty, primarily since 1972, rely on the history of the Amendment and its current use in America. Paralleling this structure, Professor Bessler explores both the Founding Fathers’ understandings of the meaning of the clause and its interpretation and use through America’s history. In the end, although the book could have been edited to provide more flow, less repetition, and a generally tighter construction, Bessler concludes that the revolution inherent in the American democratic experiment requires that opponents of capital punishment more actively seek its abolition.

Professor Bessler spends more than half of his book meticulously outlining the Founding Fathers’ beliefs and opinions about the death penalty, exploring the wide variety of literature that was available to them as well as their own words. Bessler explores the English roots of the cruel and unusual punishment clause and discusses the common meanings of the words. His research demonstrates that “original intent” is not monolithic. The Founding Fathers had complex opinions about capital punishment; they were not wholly and totally convinced that capital punishment was always a correct penal response, even in cases of heinous crimes.

Professor Bessler, backed by in depth historical research, argues that the drafters of the Bill of Rights, including the Cruel and Unusual Punishment Clause, meant for interpretation of the clause to adapt as society progressed. He concludes that an “originalist” should accept changing interpretation of the clause. Professor Bessler’s research is in direct response to those on the Court, perhaps most notably Antonin Scalia, who adhere to the conclusion that since capital punishment was known and widely in use at the time of the adoption of the Eighth Amendment, then it is beyond question that the use of capital punishment is acceptable under the Constitution today. Overcoming this familiar “original intent” interpretation is no easy task, but the historical record compiled by Professor Bessler is impressive. Cruel and Unusual develops a much needed historical record showing that the Founding Fathers and the drafters of the Bill of Rights were not thoughtless supporters of capital punishment who expected and hoped that the practice would be continued throughout the history of the country and used by the government they formed.

On the foundation of his conclusion that the drafters of the Bill of Rights did not intend an unwavering adherence to the use of capital punishment, Professor Bessler places his second, overriding, purpose—presenting a case for the abolition of the death penalty. For Bessler, death is no longer a legitimate punishment for...