Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment

By Kaplan, Paul | Law & Society Review, December 1, 2012 | Go to article overview

Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment


Kaplan, Paul, Law & Society Review


Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment. By John D. Bessler. Boston: Northeastern University Press, 2012. 456 pp. $39.95 cloth.

John D. Bessler's Cruel and Unusual is a meticulously researched and clearly written treatise on the Eighth Amendment and capital punishment. Through an extensive description of the influence of Cesare Beccaria's On Crimes and Punishments on American legal thinkers, this book offers a compelling normative argument that the death penalty violates the Eighth Amendment.

Cruel and Unusual begins with a discussion of Roper v. Simmons (2005), one of the three twenty-first-century U.S. Supreme Court cases that curtailed the death penalty in the United States, and as such exemplifies the recent trend in America away from capital punishment. The question at issue in Simmons was whether the Eighth Amendment prohibited executing persons who were under 18 when they committed murder (Simmons was 17) due to "evolving standards of decency." The Court's ruling in Simmons allows Bessler to delineate the two basic jurisprudential positions on how to interpret the Eighth (or any) Amendment, namely the "evolving" view and the "originalist" view. In Simmons, the "evolvers" won by a bare majority, and their arguments exemplify Bessler's position- that the meaning of the Eighth Amendment was not "frozen" in 1791 and that Supreme Court Justices should consider contemporary facts about the world when deciding legal controversies. Bessler argues this "evolutionary" approach is "principled" and should allow Justices to "follow the arc of history, logic and human rights" (p. 30) to total abolition.

Bessler's primary source of "logic" and "human rights" is Beccaria's (1764) classic On Crimes and Punishments. Bessler makes clear that Beccaria was a staunch utilitarian, arguing that only "necessary" punishments were just (p. 36). But missing from this discussion is enough attention to the alternative view. Kant believed the opposite of Beccaria and said so at the time (p. 39). These contrasting Enlightenment-era perspectives reflect an abiding and fascinating dialectic about punishment: Should we punish if it does not benefit society? Cruel and Unusual would be stronger had the author attended more to this fundamental debate. Nevertheless, Bessler makes clear that Beccaria "identified or anticipated nearly all of the problems that have plagued and-continue to plague-capital punishment" (p. 55) and had a significant influence on the founders of the United States, despite their almost universal support of at least some form of capital punishment.

The middle part of Cruel and Unusual traces the arguments for penal reform that emerged during early American history, mostly in relation to the work of abolitionist and humanist Dr. Benjamin Rush, and his and Beccaria's influence on the Founding Fathers. In doing so, Bessler identifies an important complexity in understanding early utilitarian penal reformers: "For Rush, solitude-not death-was the worst possible punishment" (p. 78). If this is so, how does that make Rush such a reformer? Would not isolated confinement constitute cruel and usual punishment? This lack of clarity in the big picture of Cruel and Unusual is minor, but it, along with a few others sticks out, perhaps reflecting a minor case of normative blinders on the author. Despite minor lapses such as this, this section conveys that the Framers believed in or at least entertained utilitarian/reformist ideas under their era's "standards of decency" and, by implication, would probably be abolitionists today. …

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