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9 The “Cruel and Unusual Punishment” Clause A Limit on the Power to Punish or Constitutional Rhetoric?  .  The Anglo-American legal system could hardly be described, at least historically , as soft on crime. To give one example from English history: At the time when the prohibition of “cruel and unusual punishments” first appeared as a part of the English Bill of Rights of 1689 (and for many years thereafter), the prescribed punishment for treason was to hang the offender by the neck, cut him down while still alive, remove and burn his bowels in front of him, and then behead and quarter him. Women convicted of treason received a somewhat lesser punishment—they were burned alive at the stake. The American colonies, for the most part, rejected such extreme methods of capital punishment. But early Americans found other painful or demeaning forms of corporal punishment completely acceptable. For instance, in 1791, when the United States adopted the prohibition of “cruel and unusual punishment” in the Eighth Amendment,1 federal law provided that larceny be punished by thirty-nine lashes. Branding, pillorying, and earcropping were also common punishments in America in the late eighteenth century and beyond. Today, such punishments have passed from American law and practice. But the Eighth Amendment played no direct role in their abolition. Indeed, the U.S. Supreme Court did not even have cause to mention the “cruel and unusual punishment” clause in an opinion for more than seventy-five years after its adoption, and the justices relied upon the clause only rarely during the next century. The “Cruel and Unusual Punishment” Clause / Hoffmann | 173 Sentencing reform in this country has been driven by the moral judgment of the American people, as expressed in the statutory enactments of legislatures, the discretionary decisions of prosecutors, the verdicts of juries, and the sentencing pronouncements of trial judges. With few exceptions, whenever a majority of Americans have decided that a punishment is unacceptably “cruel and unusual,” either in the abstract or as applied to a particular crime, no constitutional provision or reviewing court has been needed to fix the problem—the punishment has simply fallen into disuse, either because the authorization for it was revoked or because juries and trial judges no longer tolerated its imposition. These historical observations highlight the paradoxical nature of the cruel and unusual punishment clause: the clause seems, on the one hand, to be among the least essential elements of the Bill of Rights, because among those provisions it alone is expressed in terms of the moral judgment of a majority of American society. Unlike the anti-majoritarian thrust of the First, Second, Fourth, Fifth, and Sixth Amendments, the Eighth Amendment appears to guarantee only what the majority already believes to be morally required. And if the words “cruel and unusual” are defined in terms of society’s current mores and are subject to change only when society itself has evolved, then (except for relatively rare cases of unauthorized punitive conduct by renegade officials) the cruel and unusual punishment clause would appear to serve a merely rhetorical purpose. As Justice Joseph Story once wrote, the Eighth Amendment “would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct .”2 On the other hand, if it is possible to find independent content in the words “cruel and unusual,” that is, content or meaning independent of the current mores of American society, then the clause would be among the most essential in the Bill of Rights. This is because the clause would then confer rights upon perhaps the least valued, and hence most vulnerable, of all minority groups within society—the class of convicted criminals. Is there any class more in need of protection from the majority’s will than those who have been convicted of crimes? Even the most inept politician knows that one of the easiest ways to win votes is to appear “tough on crime” by supporting increased criminal punishments. The cruel and unusual punishment clause of the Eighth Amendment today remains a constitutional enigma. In capital cases, it has been used by the Court to justify an active federal role in regulating both the substantive and procedural aspects of that ultimate punishment. In noncapital cases, however, it rarely merits even a citation, primarily because the Court has 174 | MODERN RIGHTS IN CONTROVERSY never managed to define it except by reference to American society’s...


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