On Monday, the Supreme Court will hear arguments in the Eighth Amendment case. City of Grants Pass, Oregon vs. Johnson. One thing I'll be watching is whether the judges treat “cruel and unusual” in the question as two separate requirements or as one.
When read as hendiadys, “cruel and unusual” means “unusually cruel.” If “unusual” is considered a term of art meaning “against long usage,” then hendiadys means “innovatively cruel.”
If “cruel and unusual” means “innovatively cruel,” then there is no sequential examination of whether the punishment is “cruel” and then “unusual.” There is a single survey of innovations in cruelty. It is true that this single investigation can be divided into two stages of analysis. First, is this punishment innovative? Second, does this innovation in punishment increase cruelty? However, this is very different from the two steps involved in the two requirements views. Those who see this phrase as containing two requirements typically ask first whether the punishment is cruel and then whether it is unusual, viewing the two as separate and unrelated questions. But if we take this phrase as a hendiadys, an essential unity, these two questions become: Is the punishment innovative? And does innovation increase cruelty? – No distinction at all. One instructs the interpreter to look for innovation. The other tells interpreters what types of innovations to look for.
In short, if we take this phrase as hendiadys, then the forbidden punishment will not be simply cruel and unusual punishment. Rather, the provision prohibits new penalties. For their cruelty. A new and more painful form of capital punishment. new, more destructive methods of imprisonment (perhaps solitary confinement, etc.); Any new, more degrading restrictions on the freedom of movement of released criminals would be “revolutionarily cruel”.
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The fears expressed by the Anti-Federalists were not unfounded. In fact, the first Congress provided for the death penalty for anyone convicted of murder under exclusive federal jurisdiction. Additionally, in the interest of science and greater deterrence, the court ” [the] criminal. . . It is passed on to the surgeon for dissection.”
In other words, the concern behind the cruel and unusual punishment provisions was about progress. But it was not Herbert Spencer's view of social progress any more than William Hogarth's view of the progress of the pitchfork. Times may change and circumstances may worsen, and when they do, the Constitution must have something to resist transferable standards of decency.
However, severe punishment was not considered inevitable. Although there was little discussion of the cruel and unusual punishment provisions at the time of ratification, the discussion that was there reveals a more nuanced and ambivalent view of the innovation. That is, legislators should encourage, but not ban, innovations that increase cruelty. Adopt innovations that improve them. The interpretation presented here fits squarely with this ambivalent view. “Cruel and unusual” is a perversion that does not prohibit all innovations in punishment, but only those that bring new cruelties.
Second, this reading may lead to investigations more appropriate for judicial decision-making. What makes this second advantage possible is that a Hendiatic reading of the phrase allows for a broad, non-evaluative reading of “cruel.” If 'cruel' is used as an evaluative term, the judge must make an absolute judgment about what is cruel and what is not. That's a difficult question. Of course, some punishments are more cruel than others, but the difficulty is the constitutional disconnect. If punishment is judged on the basis of whether it is cruel in the sense of “unjustifiably cruel” or “maliciously cruel,” then the issue is an unavoidable moral one and one on which individual judgments can vary greatly. If we move to a question that asks about the subjective intentions and knowledge of public officials, that question is also a question where individual judgments are divided. Nor does it make matters any easier simply by asking questions directed at a single moment in history, such as “What was considered cruel in 1791?” It's still an abstract moral question, but with the added difficulty that it's a question the present is asking the past.
But if the phrase is read as hendiadys and “cruel” is understood to mean “harsh,” the judicial practice changes. If the standard for distinguishing between constitutional and unconstitutional punishment is not 'whether it is unreasonably cruel' but 'whether it is innovatively harsh', then judicial review is a comparative hearing. Judges do not decide the degree of cruelty that is constitutionally permissible, but rather ask whether the punishment demonstrates innovation in terms of severity. This task is relative, and such tasks tend to be more amenable to judicial capacity.