The Concept of “Unusual Punishments” in Anglo-American Law: The Death Penalty as Arbitrary, Discriminatory, and Cruel and Unusual

The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as it relates to the dividing line between “usual” and “unusual” punishments. The Article concludes that customary punishments were often described as “usual punishments,” but that it was understood—and has long been understood by the U.S. Supreme Court itself—that punishments might become “unusual” over time. The Article further concludes that the protection against the infliction of “cruel and unusual punishments” arose out of a desire to protect against torture and the arbitrary infliction of punishments, including ones that were either out of step with societal values or that had become at odds with societal norms. In light of the decline in death sentences and executions, the Fourteenth Amendment’s post-Civil War guarantee of “due process” and “equal protection of the laws,” and the Eighth Amendment’s long-standing prohibition against torture, this Article concludes that America’s death penalty, which has always been cruel, has now become a highly arbitrary and unusual punishment. The Article concludes that life sentences are now the “usual” punishment for the most serious crimes, and that the death penalty is now “unusual” and that its use is incompatible with the text and guarantees of the U.S. Constitution. Not only are executions now extremely rare, especially in comparison to life sentences, but the death penalty is administered in an arbitrary, error-prone, discriminatory, and torturous manner

Revisiting Beccaria\u27s Vision: The Enlightenment, America\u27s Death Penalty, and the Abolition Movement

In 1764, Cesare Beccaria, a 26-year-old Italian, penned . The treatise argued that state-sanctioned executions and torture violate natural law. As we near the 250th anniversary of its publication, author John D. Bessler provides a comprehensive review of the abolition movement, from before Beccaria\u27s time to the present. Bessler reviews Beccaria\u27s influence on Enlightenment thinkers and more importantly, on America\u27s Founding Fathers. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in International Law towards the abolition of the death penalty. It then discusses the current state of the death penalty in light of the Supreme Court\u27s most recent decision in and concludes that there is every reason to believe that America\u27s death penalty may finally be in its death throes

The Gross Injustices of Capital Punishment: A Torturous Practice and Justice Thurgood Marshall’s Astute Appraisal of the Death Penalty’s Cruelty, Discriminatory Use, and Unconstitutionality

Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. An edict of the Grand Duke of Tuscany, issued in 1786, made Tuscany the first jurisdiction in Western civilization to abolish capital punishment for all crimes. In 2021, decades after Justice Thurgood Marshall spoke out against “the gross injustices in the administration of capital punishment” and filed relentless dissents asserting that the death penalty is a per se violation of the U.S. Constitution’s Eighth and Fourteenth Amendments, the Commonwealth of Virginia became one of the latest jurisdictions to abolish capital punishment. In the more than 250 years since the publication of Beccaria’s On Crimes and Punishments, much penal reform and social change has occurred, including with respect to interrogation, criminal justice, and punishment practices. Judicial torture, for example, was once explicitly authorized in civil law countries in continental Europe, but the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment now expressly prohibits both physical and mental forms of torture. In addition, Western penal systems have abandoned non-lethal corporal punishments—once a staple of centuries-old legal systems. The English common law and the Eighth Amendment, in fact, have long been understood to prohibit torture, though the concept of torture was understood much differently in the seventeenth and eighteenth centuries than it is in the twenty-first century. England’s monarchs, acting outside the common-law prohibition, previously made use of devices of torture such as the rack and the thumbscrew, and the U.S. Supreme Court—in the nineteenth century—explicitly approved the use of public shooting and electrocution as methods of execution even as it simultaneously held that the Eighth Amendment bars torturous punishments. European countries, including England, now explicitly forbid executions altogether through two protocols to the European Convention on Human Rights. Significantly, although the English “Bloody Code” once authorized death sentences for scores of offenses along with various non-lethal corporal punishments such as ear cropping and the pillory, bodily punishments such as branding and the stocks are no longer part of Western penal codes. This Article contextualizes the modern death penalty debate and recalls the cogent arguments that Justice Thurgood Marshall made against capital punishment in his judicial opinions. It then shows how Justice Marshall’s vocal and pragmatic critique of capital punishment—one rooted in his own experience as a civil rights lawyer in capital cases and, later, as a justice—should be taken seriously and adopted by present-day U.S. Supreme Court justices. In laying out Justice Marshall’s persuasive arguments against capital punishment, the Article points out that mock (or simulated) executions and other threats of death or bodily harm in other contexts (e.g., with respect to custodial interrogations) are already treated as impermissible acts of psychological torture. With Justice Marshall regularly classifying the death penalty as a “cruel and unusual punishment” in his powerful, well-grounded dissents, this Article asserts that those dissents against capital punishment should become the law of the land in the twenty-first century. Not only is capital punishment cruel and unusual and a violation of equal protection of the laws as Justice Marshall contended, but it is clear that, in light of the modern definition of torture, statesponsored death threats must be classified under the rubric of torture—what the law considers the extreme form of cruelty. The absolute prohibition of torture is already considered to be a jus cogens norm of international law and that legal prohibition admits of no exceptions, with the death penalty bearing all the tell-tale indicia and characteristics of torture. In fact, an immutable characteristic of capital punishment is that it makes use of credible threats of death. In short, the death penalty’s use—long known to intentionally inflict severe pain and suffering, and long administered in a highly arbitrary and discriminatory fashion in violation of fundamental human rights—must be outlawed and strictly forbidden to ensure that no one is subjected to the cruelty or torture of facing a capital prosecution, living under a sentence of death, or being put to death at the hands of the state. Justice Marshall—along with his colleague, Justice William Brennan—frequently wrote that the U.S. Constitution’s Eighth and Fourteenth Amendments should be interpreted to bar the death penalty’s use in all circumstances. In examining all of the evidence, much of which is irrefutable, this Article concludes that Justice Marshall was correct and that the death penalty’s use must be declared to be unconstitutional and a per se violation of the U.S. Constitution. Death sentences and executions violate human dignity, fundamental human rights, and the equal protection of the laws—concepts at the very heart of American and international law, and ones that Justices Marshall and Brennan regularly cited in their judicial opinions. In the twenty-first century, death sentences and executions must be stigmatized for what they truly are: acts of extreme cruelty amounting to torture

The Rule of Law: A Necessary Pillar of Free and Democratic Societies for Protecting Human Rights

This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in Europe, America’s founding period, and the post–World War II era. In particular, the essay discusses the intellectual contributions of historical figures such as the Italian criminal-law theorist Cesare Beccaria, the French jurist, Baron de Montesquieu, and American revolutionaries who played major roles in laying the now centuries-old foundation for the development of the modern-day Rule of Law concept (i.e., in drafting early American constitutions and laws, including the U.S. Constitution and its Bill of Rights). The essay explores a wide range of topics, from the creation of the United Nations and the ratification of international conventions and human rights treaties, to the adoption of South Africa’s post–apartheid constitution, to Donald Trump’s continuous and systematic assault on the Rule of Law, human rights, and democratic institutions and norms. The essay also highlights the Rule of Law’s symbiotic relationship to the protection of fundamental human rights such as the rights to equality, to vote, and to be free from discrimination, cruelty and torture. Arguing that various Trump Administration acts and policies (e.g., separating children from their parents at the U.S.-Mexico border and the death penalty’s use) and the outrageous and brazen efforts of Donald Trump and his campaign and allies to discriminate against and disenfranchise voters violate core Rule of Law principles, the essay concludes by emphasizing the Rule of Law’s continuing and critical importance to the protection of civil liberties and fundamental human rights in the twenty-first century

A Century in the Making: The Glorious Revolution, the American Revolution, and the Origins of the U.S. Constitution’s Eighth Amendment

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of Titus Oates and others during the reign of King James II, the Article sheds light on the origins of the language of Section 10 of the English Bill of Rights. That language became a model for similarly worded provisions in early American constitutions and declarations of rights, including the Virginia Declaration of Rights, that were linguistic forerunners of the Eighth Amendment. The U.S. Constitution’s Eighth Amendment, ratified in 1791, became the law of the land more than 100 years after the Glorious Revolution, though that provision of the U.S. Bill of Rights was shaped by the Enlightenment as well as by early American understandings of English law and custom. The Article describes the seventeenth-century origins of the Eighth Amendment’s prohibitions and the Enlightenment’s impact on eighteenth-century thinkers, while highlighting how existing American prohibitions against excessive bail, excessive fines, and cruel and unusual punishments are now understood to bar acts inconsistent with “the evolving standards of decency that mark the progress of a maturing society.” The Article concludes by outlining the implications of the Eighth Amendment’s history for modern American jurisprudence. In doing so, it provides a critique of the U.S. Supreme Court’s recent Eighth Amendment decision in Bucklew v. Precythe