William & Mary Bill of Rights Journal
Abstract
This article criticizes the Court's interpretation of the Eighth Amendment's Cruel and Unusual Punishment Clause and offers its own understanding. The Court's jurisprudence is plagued by deep inconsistencies concerning the Amendment's 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 of the Clause: (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 andunusual would make little sense as a matter of either 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 Framers endorsed proportionality on both subconstitutional and constitutional levels. A majoritarian approach does little to cabin judicial subjectivity relative to alternatives. While overlooking the potential deficiencies of political processes, it gives their results the force of constitutional law. Such processes can result in problems of undue generality, excessive pursuit of deterrence and incapacitation, inadequate funding, and desuetude. The gratuitously harsh punishments they sometimes produce merit judicial attention. This article proposes a theory 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 her just deserts. It proposes 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 explores how this theory would apply to several issues, including the abolition of the insanity defense, the use of strict liability, and Roper v. Simmons's ban against the execution of juveniles younger than eighteen.