Northwestern Journal of Law & Social Policy Volume 13 | Issue 4 Article 2 Spring 2018 The onceptC of “Unusual Punishments” in Anglo- American Law: The eD ath Penalty as Arbitrary, Discriminatory, and Cruel and Unusual John D. Bessler Recommended Citation John D. Bessler, The Concept of “Unusual Punishments” in Anglo-American Law: The Death Penalty as Arbitrary, Discriminatory, and Cruel and Unusual, 13 Nw. J. L. & Soc. Pol'y. 307 (2018). https://scholarlycommons.law.northwestern.edu/njlsp/vol13/iss4/2 This Article is brought to you for free and open access by Northwestern Pritzker School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of Law & Social Policy by an authorized editor of Northwestern Pritzker School of Law Scholarly Commons. Copyright 2018 by Northwestern University Pritzker School of Law `Vol. 13, Issue 4 (2018) Northwestern Journal of Law and Social Policy The Concept of “Unusual Punishments” in Anglo-American Law: The Death Penalty as Arbitrary, Discriminatory, and Cruel and Unusual John D. Bessler* ABSTRACT The Eighth Amendment of the U.S. Constitution, like the English Bill of Rights before it, safeguards against the infliction of “cruel and unusual punishments.” To better understand the meaning of that provision, this Article explores the concept of “unusual punishments” and its opposite, “usual punishments.” In particular, this Article traces the use of the “usual” and “unusual” punishments terminology in Anglo-American sources to shed new light on the Eighth Amendment’s Cruel and Unusual Punishments Clause. The Article surveys historical references to “usual” and “unusual” punishments in early English and American texts, then analyzes the development of American constitutional law as it relates to the dividing line between “usual” and “unusual” punishments. The Article concludes that customary punishments were often described as “usual punishments,” but that it was understood—and has long been understood by the U.S. Supreme Court itself—that punishments might become “unusual” over time. The Article further concludes that the protection against the infliction of “cruel and unusual punishments” arose out of a desire to protect against torture and the arbitrary infliction of punishments, including ones that were either out of step with societal values or that had become at odds with societal norms. In light of the decline in death sentences and executions, the Fourteenth Amendment’s post-Civil War guarantee of “due process” and “equal protection of the laws,” and the Eighth Amendment’s long-standing prohibition against torture, this Article concludes that America’s death penalty, which has always been cruel, has now become a highly arbitrary and unusual punishment. The Article concludes that life sentences are now the “usual” punishment for the most serious crimes, and that the death penalty is now “unusual” and that its use is incompatible with the text and guarantees of the U.S. Constitution. Not only are executions now extremely rare, especially in comparison to life sentences, but the death penalty is administered in an arbitrary, error-prone, discriminatory, and torturous manner. * Associate Professor, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center; Visiting Scholar/Research Fellow, Human Rights Center, University of Minnesota Law School; Of Counsel, Berens & Miller, P.A., Minneapolis, Minnesota. NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2018 I. INTRODUCTION The English Bill of Rights of 1689 included a prohibition on the infliction of “cruel and unusual punishments.”1 That provision was a byproduct of the Glorious Revolution of 1688, a revolution that overthrew King James II of England, a Catholic, and installed Dutch stadtholder William III of Orange-Nassau and his wife, Mary II, as England’s new king and queen.2 On February 13, 1689, William and Mary, while seated on armchairs “under a Canopy in the Banqueting-House,” listened as a clerk read a declaration recounting how King James II had abrogated the throne and violated the rights of the English people.3 To vindicate “their Ancient Rights and Liberties,” the “Lords Spiritual and Temporal, and Commons”—those who had joined forces with William of Orange to put parliamentary limits on monarchical power—publicly declared their rights, the tenth of which read: “That Excessive Bail ought not to be required, nor Excessive Fines imposed, nor cruel and unusual Punishments inflicted.”4 1 Roper v. Simmons, 543 U.S. 551, 577 (2005); Harmelin v. Michigan, 501 U.S. 957, 966 (1991). That protection has been described as a “fundamental principle of the Government of England” intended “to establish mercy, even to convicted offenders.” JEAN LOUIS DE LOLME, THE CONSTITUTION OF ENGLAND; OR, AN ACCOUNT OF THE ENGLISH GOVERNMENT 385 (1789); see also id. at 385–86 (citing Article 10 of the English Bill of Rights and noting “Torture has, from the earliest times,” been “unknown in England”): From the same cause also arose that remarkable forbearance of the English Laws, to use any cruel severity in the punishments which experience shewed it was necessary for the preservation of Society to establish: and the utmost vengeance of those laws, even against the most enormous Offenders, never extends beyond the simple deprivation of life. Nay, so anxious has the English Legislature been to establish mercy, even to convicted offenders, as a fundamental principle of the Government of England, that they made it an express article of that great public Compact which was framed at the important æra of the Revolution, that “no cruel and unusual punishments should be used.” 2 See generally STEVE PINCUS, 1688: THE FIRST MODERN REVOLUTION (2009). 3 ABEL BOYER, THE HISTORY OF KING WILLIAM THE THIRD 354–56 (1702). That declaration recited that “Excessive Bail hath been requir’d of Persons committed in Criminal Cases,” that “Excessive Fines have been impos’d,” and that “Illegal and Cruel Punishments inflicted.” Id. at 355. 4 Id.; see also Meghan J. Ryan, Does the Eighth Amendment Punishments Clause Prohibit Only Punishments that are Both Cruel and Unusual?, 87 WASH. U. L. REV. 567, 575 (2010): There is no clear evidence as to what Parliament intended to probibit by the language of Article 10. The preamble of the English Bill of Rights denounces King James II’s subversion of English laws and liberties by, among other things, suspending laws without Parliament’s consent, prosecuting prelates for petitioning the King, and prosecuting individuals for ecclesiastical offenses. The document also charges that “excessive fines have been imposed; and illegal and cruel punishments inflicted.” Historically, scholars have disagreed whether the document prohibited cruel methods of punishment or cruel and illegal punishments, but they seem to agree that, whatever the meaning of the document, it was enacted “to prevent a recurrence of recent events” in England. 308 Vol. 13:4] John D. Bessler Like the British, Americans opposed “cruel and unusual punishments,” though that concept was left undefined in American constitutions. Prior to the Revolutionary War (1775–1783), American colonists, as British subjects living in the Age of the Enlightenment, felt grossly abused and oppressed by George III.5 After unsuccessfully seeking fair and equitable treatment in comparison to those in the British Isles, the colonists rebelled, declared their independence, promulgated bills of rights and constitutions containing important legal protections, and became American citizens.6 In light of that history and the fervent desire of the colonists to safeguard their individual rights, privileges, and liberties, it is hardly surprising that the long-standing English prohibition against “cruel and unusual punishments” was widely copied—sometimes verbatim—in American declarations of rights and in constitutions in the newly forged republic, the United States of America.7 The legal protection against “cruel and unusual punishments,” a prohibition early Americans eagerly embraced, first found its way into American law through an 5 BARBARA BARDES, MACK SHELLEY & STEFFEN SCHMIDT, AMERICAN GOVERNMENT AND POLITICS TODAY: THE ESSENTIALS 31 (2008) (“The conflict between Britain and the American colonies, which ultimately led to the Revolutionary War, began in the 1760s when the British government decided to raise revenues by imposing taxes on the American colonies.”); compare 1 ALBERT H. PUTNEY, INTRODUCTION TO THE STUDY OF LAW: LEGAL HISTORY 210 (1908): The Revolutionary War, in its broadest significance, was not so much between America and England, as one in which the radical forces in both countries were arrayed against the conservative elements in each. William Pitt openly rejoiced that America had resisted, while Fox, in his speeches in the House of Commons habitually referred to Washington’s forces as “our army,” and even adopted the famous blue and buff of the continental army as the colors of the Whig party. With the mass of the English people the war was so unpopular that the troops for the war mainly had to be hired in Germany. On the other hand, probably at least one-third of the whole population of the colonies were Tories in their sympathies, and this third included the majority (the great majority outside of Massachusetts) of the wealthy and educated classes. 6 The Declaration of Independence, referring to “a long train of abuses and usurpations,” “absolute Despotism,” and “repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States,” asserted that it was the “right” and “duty” of the people “to throw off such Government.” THE DECLARATION OF INDEPENDENCE (U.S. 1776). Among the indictments of George III in the Declaration of Independence: “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.” Id. 7 JOHN D. BESSLER, CRUEL AND UNUSUAL: THE AMERICAN DEATH PENALTY AND THE FOUNDERS’ EIGHTH AMENDMENT 155 (2012); see also Steven G.