The Supreme Court is scheduled to hear arguments in the Eighth Amendment case on Monday. City of Grants Pass, Oregon State vs. Johnson. What I would like to focus on is whether the judge treats „cruelty and abnormality“ as two separate requirements in the question, or as one requirement.
„Cruel and unusual“ can be read as hendiadis, which means „unusually cruel.“ If we interpret „abnormal'' as an artistic term meaning „contrary to long-standing usage,'' then hendiadis means „novel and cruel.''
If „cruel and unusual“ means „innovatively cruel,“ then there is no body of inquiry into whether punishment is „cruel“ and then „unusual.“ One of his studies is about innovations in cruelty. Indeed, he can divide this one investigation into two analytical steps. First, is this punishment innovative? Second, does this innovation in punishment increase brutality? However, this is very different from the two steps associated with his two-requirement view. Those who think that this phrase contains two requirements usually first ask whether the punishment is cruel, then ask whether it is unusual, and consider these two separate and unrelated questions. It will be treated as But if this phrase is taken as hendiadis, essential unity, then the two questions are: Is the punishment innovative? Does innovation increase brutality? They are completely indistinguishable. Some tell interpreters to look for innovations. He also tells the interpreter what type of innovation to look for.
In other words, if we interpret this word as hendiades, then the prohibited punishments do not just happen to be cruel and unusual. Rather, this provision prohibits new penalties. In their cruelty. A new, more painful form of capital punishment. new, more harmful forms of incarceration (like perhaps solitary confinement); Any new, more humiliating restrictions on the freedom of movement of released criminals would be „innovatively cruel“.
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The concerns expressed by the Anti-Federalists were not unfounded. In fact, the first Congress provided for the death penalty for anyone convicted of murder in a place under exclusive federal jurisdiction, and in the interest of science and the advancement of deterrence, courts decided to He added that he could request „…“. It will be handed over to a surgeon for an autopsy. ”
In other words, the concern behind cruel and unusual punitive provisions was about progress. But that was not Herbert Spencer's view of the progress of society, but also William Hogarth's view of the progress of the pitchfork. Times change and things can go downhill. When that happens, we need something in our constitution to resist changing standards of decency.
However, harsher punishment was considered inevitable. There was little discussion of the Cruelty and Unusual Punishment Clause at the time of its ratification, but the debate that took place suggests a more nuanced and dual view of innovation: legislators suppress innovations that increase cruelty; should be encouraged, but should be encouraged. Adopt innovations that improve it. The interpretation given here fits precisely into that dual perspective. „Cruel and unusual“ is a hendiadi that does not prohibit all innovations in punishment, but only those that result in new cruelty.
Second, this reading may lead to research that is more appropriate for judicial decision-making. What makes this second advantage possible is that the hendian interpretation of the phrase allows for a broad, non-evaluative interpretation of „cruel.“ If „cruel“ is viewed as an evaluation term, judges are forced to make absolute judgments about what is and is not cruel. That's a difficult question. Of course, some punishments are more cruel than others, but it's the constitutional truncation that is difficult. If punishment is judged based on whether it is cruel in the sense of being „unjustly cruel'' or „maliciously cruel,'' then the issue is an unavoidable moral issue and largely depends on individual judgment. This is a problem that is likely to be different. When the issue moves to an investigation into the subjective intentions and knowledge of government officials, that investigation also becomes an investigation of individual judgment. Nor does it make the questions easier to address at a particular moment in history, such as „What was considered cruel in 1791?“ It is still an abstract moral question, but with the added difficulty of being a question of the present against the past.
However, when this phrase is read as hendiadis and „cruel“ is understood to mean „harsh,“ the judicial task changes. If the difference between constitutional and unconstitutional punishments is not whether they are „unreasonably cruel“ but rather whether they are „innovatively harsh,“ judicial scrutiny would be comparative. . Rather than determining the degree of cruelty that is constitutionally permissible, judges will instead ask whether the punishment is innovative in its severity. This task is comparative, and such tasks tend to be better suited to judicial competence.