Today in the NYR Online, Duncan Hosie writes about the Supreme Court’s attempts to bring originalist interpretation to bear on the Eighth Amendment:

The Eighth Amendment reads, in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Rather than proscribe a list of specific punishments, the clause leaves it to each generation to decide, based on their own practices and values, what punishments count as “cruel” and “unusual.” This elegant ambiguity has always been a problem for originalists: it refutes their idée fixe that constitutional meaning was frozen at the founding era. Making 1787 the standard for assessing what is “cruel and unusual,” as originalists propose, is untenable: governments in the colonial and founding eras celebrated gruesome spectacles of punishment, including branding, whipping, and tarring and feathering.

Untenable though 237-year-old methods of discipline may be, the Roberts Court has “wasted little time in targeting the evolving standards of decency”:

The conservative justices have recently let prison officials deny exercise breaks to Michael Johnson, a mentally ill prisoner confined at nearly all times to a tiny, poorly ventilated cell often caked in feces. They let Texas keep Dennis Hope in solitary confinement, where he has been caged for nearly three decades. They upheld sentencing juveniles like Brett Jones to life without parole, forever barring him and hundreds of young people like him from a chance at life outside.

Below, alongside Hosie’s essay, we have compiled a selection of writing from the archives about American law and punishment.

Duncan Hosie
The Hollowing of the Eighth Amendment

The Supreme Court’s Republican majority has been quietly rolling back a longstanding consensus over cruel and unusual punishment.

John Paul Stevens
On the Death Sentence

“Two years ago, quoting from an earlier opinion written by Justice White, I wrote that the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.’”

—December 23, 2010

Jed S. Rakoff
Will the Death Penalty Ever Die?

How can one applaud capital punishment knowing that those executed may well be innocent?

—June 8, 2017

Martin Garbus
America’s Invisible Inferno

“[My clients who have spent time in solitary] describe being shackled to their bunks by their feet and hands, and moved from place to place like animals. They report being fed slop and also left without food in a state of extreme hunger. They tell me that hooded guards, armed with tasers and bats, in body armor and riot gear, extract prisoners from their cells and leave them lying on the floor, beaten, bruised, and unexamined by doctors. Once you see—and smell—a solitary cell, you will never forget it.”

—December 8, 2016

Richard Cohen
Goodbye, William!

“The lie, of course, was that electrocution was both painless and swift. In too many cases, it was anything but. Like the dogs and horses that died painful and slow deaths in the experiments underwritten by Edison, those who followed Kemmler to the chair often suffered hideously and—it seemed to the witnesses and, we may suppose, the condemned themselves—for long periods. Nonetheless, such was the blind faith in technology that the public continued to disbelieve what many witnesses reported.”

—August 14, 2003

William F. Schulz
Cruel & Unusual Punishment

“Unlike a gunshot wound, a bruise from a police club, or a rape, electronic shock usually provides investigators with little physical proof with which to corroborate charges of brutality. Since the shocks can be applied repeatedly, the only restraints on their sadistic repetition are the training, supervision, and ultimately the discretion of the officer involved. There is reason to suspect, however, that such discretion may decline in direct proportion to the increasing physical distance between operator and victim.”

—April 24, 1997

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