Original Meaning: Cruel and Unusual Punishments

by P.A. Madison on March 19th, 2012

Summary: The prohibition against cruel and unusual punishments is a check against discretionary acts of courts to impose illegal and cruel punishments that are unknown to written law as practiced under the infamous court of Star Chamber.

I thought it was about time to address the well-established ancient understanding of the Eighth Amendments provision for “cruel and unusual punishments” since it is obvious current jurisprudence has no fundamental clue to its constitutional purpose. Most judges today probably will be surprised to learn it is directed at them as security against imposing discretionary punishments not sanctioned by fixed law than anything to do with established law itself.

Cruel and unusual punishment under the Eighth Amendment is rather easy to understand because of the fact it was copied verbatim from the English Bill of Rights of 1689. The English Bill of Rights tells us the evil remedied by the words “cruel and unusual punishments” was to prohibit the practice of “illegal and cruel punishments,” because such punishments were “utterly and directly contrary to the known laws and statutes and freedom of this realm.”

The English Bill of Rights of course was in response to the evil perpetrated by the great tyrannical commission of the infamous court of Star Chamber. The court of Star Chamber originally served as a king’s council to supervise lords under Henry VII that grew into an oppressive tool of the crown to destroy political opposition, generate revenue for the treasury through extraordinary fines and confiscation, and to punish disobedience to its illegal proclamations.

The court became so powerful it could control the press by prohibiting what could be published or punish juror’s for verdicts that displeased the King. Even Parliament grew terrified of the court.

Because punishments and fines of the court of Star Chamber were at the discretion of judges who arbitrarily pronounced guilt outside of the law of the land, often were harsh and unknown to the common law for the reason they were issued not with rule of law in mind, but cruelty and vindication. Thus, the English Bill of Rights made it illegal for any judge of a court to proscribe any punishment or fine unknown to the common law.

Like the English Bill of Rights, the Eighth Amendment secures against courts using their own discretion to impose illegal punishments, and like the English Bill of rights, does not extend itself to punishments authorized by established law. However, it does act to prohibit the executive or the legislature from creating any extralegal body with authority to act outside of established law in order to impose unlawful punishments or fines.

How do we know discretionary judgements is the true and proper interpretation of the clause? The first appeal to “cruel and unusual punishments” under the English Bill of Rights came from Anglican cleric Titus Oates who petitioned both houses of Parliament over the discretionary sentence imposed by Chief Justice Jeffreys that included heavy fine, pillory four times a year along with life imprisonment for perjury. Clearly it was not considered protection against laws of Parliament but only the discretionary abuse of the Kings bench.

Additionally, early State constitutions made it very clear the prohibition was only directed at the courts themselves rather than the legislature:

No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.

A federal bill in 1867 to enforce the Eighth Amendment of citizens of the United States outside of their home State was proposed that “touches only those modes of punishment that consist in the infliction of personal torture, by judgment of the court, directly upon the body of the individual.”

It is rather absurd to argue the prohibition against excessive fines or cruel and unusual punishments is a restriction on the law-making power of the legislature since this leads to the absurdity of courts using their discretion of determining what constitutes excessive fines or cruel and unusual punishment instead of established law.

The Court could establish a rule that that says any death penalty is cruel and unusual or that confinement of more than 10 years, or feeding green bologna to serial killers is cruel.

Additionally, early court cases of cruel and unusual punishments found them illegal on the basis such punishments were not sanctioned by fix law of the State. The use of the old ducking-stool (not to be confused with cucking-stool) punishment for woman was considered cruel and obsolete by the court in James v. Commonwealth, 12 Serg. & R. 236, yet agreed the law would been upheld if was a lawfully prescribed punishment under Pennsylvania codes rather than a discretionary imposed punishment of a judge.

A lawfully enacted statute that calls for “electrocution” as a method for death is no violation of the Eighth Amendment because such punishment is known and authorized by law as a means of punishment, and therefore, cannot be considered an cruel and unusual discretionary act of a court. On the other hand, if the law calls for death by firing squad but instead a judge imposes death via a venous snake pit would violate the Eighth Amendment because it would be an unusual form of punishment due to the fact it is not sanctioned by fixed law, and thus, illegal.

Moreover, a law that calls for child rapists to be put to death via a venous snake pit would not be considered cruel and unusual punishment because it would be a form of known lawful punishment required of the court to impose instead of a court using its own discretion outside of fixed law that defines such punishment. It is rather a community or political question and not a legal one as to whether such mode of punishment is proper or humane.

I’ll leave the last word to Justice James Iredell: “Let us also remember, that as those who are to make those laws must themselves be subject to them, their own interest and feelings will dictate to them not to make them unnecessarily severe.”

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3 Responses | Leave a Comment
  1. mike says:

    I have just finished reading Charles Spencer’s interesting book about the 1649 execution of King Charles I, the short and chaotic history of the British Republic, and the measures for retribution imposed by Charles II on the men who were most involved with that execution, after the Restoration of the monarchy in 1660. Twelve of those who participated in the trial and execution of Charles I were executed by being “hanged, drawn and quartered,” a particularly savage form of execution reserved for traitors (and the corpses of others who died before the Restoration were dug up and hanged.) There were also a number of botched beheadings later in the 17th century. There was also the history of Execution Rock, where Long Island Sound meets the East River. Convicted pirates were chained to the rock at low water, and left to be drowned by the incoming tide.

    I believe that the history of those brutal executions likely influenced the Constitutional Convention to adopt this clause.

  2. Lenny Polk says:

    I think it was Wilson who described any punishment not prescribed by law of the land to be cruel or illegal. I have no doubt that is the principle conveyed by the words.

  3. Larry says:

    Edmund Randolph said cruel and unusual punishments can only be inflicted once laws are made and judges ignore those laws of justice.

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