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Remembering the "s" in "Cruel and Unusual Punishments"

Richard Epstein has this essay at the Hoover Institution, titled "The Constitution's Vanishing Act." His thesis is that conveniently forgetting parts of the Constitution can sometimes expand judicial power and sometimes contract it.  He begins with the Supreme Court's frequent forgetting of the "s" in the Eighth Amendment's command "... nor cruel and unusual punishments inflicted."

The importance of the slip is evident from the 2012 Supreme Court decision Miller v. Alabama, which struck down a mandatory lifetime sentence for a fourteen year-old guilty of murder. In writing her opinion, Justice Elena Kagan included the "s" in quoting the clause. But during the analysis, that "s" disappears, thereby transforming the constitutional text:

The Eighth Amendment's prohibition of cruel and unusual punishment "guarantees individuals the right not to be subjected to excessive sanctions." That right, we have explained, "flows from the basic 'precept of justice that punishment for crime should be graduated and proportioned' " to both the offender and the offense. 

Justice Kagan faithfully references earlier cases that take her position. But the wealth of precedent does not conceal the major shift in constitutional focus. The prohibition against "cruel and unusual punishments" conjures up a list of punishments that should be rejected because they are cruel, no matter what the offense. The issue of proportionality never arises.

That interpretation makes sense because this clause is lifted word for word from the English Bill of Rights of 1689, after it accuses the deposed King James II of inflicting "illegal and cruel punishments." The clause outlaws the rack, the thumb-screw, drawing and quartering, and other fiendish activities. In no sense did it outlaw the death penalty. Nor could that reading be sensibly made of our own Constitution, whose Fifth Amendment contains references to the death penalty in connection with due process, grand jury presentments, and double jeopardy.

Yet once the "s" is dropped, it is far easier to read the clause as Justice Kagan did, demanding proportionality between the offense and the punishment. At this point, the Court can question the death penalty in many cases, including child rape. In 2008, the Court in Kennedy v. Louisiana found that the Eighth Amendment should be read in light of "the evolving standards of decency that mark the progress of a maturing society." But this line of reasoning is simply pop sociology. Historically, there has been much principled and popular opposition to the repeal of the death penalty that should not be so easily cast aside.

Even the most austere account of limited government offers no coherent theory to explain whether the death penalty should be retained or junked, and if so, for what offenses. If there were ever a legislative function, this is it. The disappearance of that "s" was not just a random event. It paved the way for the justices to create a code of criminal sentencing, whose effects are so widespread and profound that it must be regarded as a constitutional amendment, and an unwise one at that.


And what part of the text of the 8th Amendment suggests that classes of people (e.g., Atkins) may avoid punishment that is available to others? I always thought that was a legislative prerogative related to presumptions.

None. Epstein's criticism of Miller would apply equally to Atkins.

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