The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation

By Stinneford, John F. | Northwestern University Law Review, Fall 2008 | Go to article overview

The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation


Stinneford, John F., Northwestern University Law Review


"Were your health in danger, would you take new medicine? I need not make use of these exclamations: for every member in this committee must be alarmed at making new and unusual experiments in government. "[dagger]

"It is the genius of the common law to resist innovation."[double dagger]

I. INTRODUCTION ................................................................................................... 1740

II. CURRENT JURISPRUDENCE: MORAL PRINCIPLE, PUBLIC OPINION, AND THE ERASURE OF "UNUSUAL" ................................................................................................... 1747

A. Standardless Standards: Evolving Standards of Decency and the Erasure of "Unusual" ................................................................................................ 1749

B. Dead Letters: Justice Scalia 's Originalist Reading of the Eighth Amendment .................................................................................................................. 1757

III. THE ORIGINAL MEANING OF "UNUSUAL" ........................................................... 1766

A. Long Usage, Use, Usual, and Unusual ..................................................... 1768

B. The Importance of Being "Usual ": Edward Coke and the Normative Power of "Long Usage" ....................................................................................... 1771

C. William Blacks tone and the Divergence Between Normative and Actual Power ........................................................................................................ 1786

D. Long Usage and the American Revolution ................................................ 1792

E. Long Usage and the Eighth Amendment ................................................... 1800

F. The Meaning of "Unusual" in the Early Caselaw .................................... 1810

IV. THE IMPLICATIONS OF RECOGNIZING THE ORIGINAL MEANING OF "UNUSUAL"... 1815

A. Evolving Standards Versus Long Usage ................................................... 1815

B. Long Usage and Proportionality in Sentencing ........................................ 1819

C. Long Usage and the Death Penalty ........................................................... 1821

D. Long Usage and State Constitutions ......................................................... 1822

E. Open Questions ......................................................................................... 1824

V. CONCLUSION ...................................................................................................... 1825

I. INTRODUCTION

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing,"1 "ineffectual and incoherent,"2 a "mess,"3 and a "train wreck."4

The feeling that modern Eighth Amendment jurisprudence has gone off the rails has arisen, at least in part, from the wildly inconsistent rulings that have emanated from the Supreme Court over the past few decades, particularly regarding proportionality in sentencing and the death penalty. For example, in Rummel v. Estelle,5 the Court upheld a life sentence for a smalltime recidivist who was convicted of obtaining $120.75 by false pretenses. The Court brushed off the argument that the sentence was grossly disproportionate to the offense, stating that "one could argue without fear of contradiction by any decision of this Court" that the Cruel and Unusual Punishments Clause does not require any proportionality between crime and sentence outside the death penalty context.6 Three years later, in Solem v. Helm,1 the Court struck down a life sentence for another small-time recidivist who had been convicted of uttering a "no account" check for $100.

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