The Supreme Court will hear the Eighth Amendment case on Monday. City of Grants Pass, Oregon v. Johnson. One thing I’ll check is whether judges in their applications treat “cruel and unusual” as two separate requirements or as just one.
Read as hendiadic, “cruel and unusual” would mean “unusually cruel.” If “unusual” were considered a term of art meaning “contrary to prolonged use,” then hendiadys would mean “innovatively cruel.”
If “cruel and unusual” means “innovatively cruel,” then there is no sequential inquiry into whether a punishment is “cruel” and then “unusual.” There is only one survey on innovation in cruelty. It is true that this single investigation could be divided into two analytical phases. First of all, is this punishment innovative? Second, does the innovation of this punishment increase cruelty? However, this is very different from the two steps associated with a two-requirements view. Those who see the sentence as containing two requirements typically ask first whether a punishment is cruel and then whether it is unusual, treating the two questions as distinct and unrelated. But if the sentence is understood as hendiady, as an essential unity, then these two questions: is the punishment innovative? and does innovation increase cruelty? – they are not distinct at all. The interpreter is told to look for innovation; the other tells the interpreter what kind of innovation to look for.
In short, if the phrase were understood as hendiady, the prohibited punishments would not be those that were merely cruel and unusual. Rather, the clause would prohibit new punishments in their cruelty. A new and more painful form of capital punishment; a new, more harmful mode of incarceration (perhaps like solitary confinement); a new, more humiliating restriction on the freedom of movement of released criminals: everything would be “innovatively cruel”.
. . .
The fears expressed by the Anti-Federalists were not unfounded. Indeed, the first Congress prescribed the death penalty for anyone convicted of murder in a place under exclusive federal jurisdiction, adding, for the benefit of science and for greater deterrence, that the court could require “that the body of [the] delinquent. . . be handed over to a surgeon for dissection.”
In other words, the concern behind the Cruel and Unusual Punishment Clause was about progress. But it was not so much Herbert Spencer’s vision of social progress as William Hogarth’s vision of freedmen’s progress. Times change and things can get worse and, when they do, there needs to be something in the Constitution that stands up to devolved standards of decency.
However, the move to harsh punishments was not seen as inevitable. Although there was little discussion of the Cruel and Unusual Punishments Clause at the time of its ratification, what debate there has been shows a more subtle and two-sided view of innovation: legislators should be forced to adopt innovations that increase cruelty, but they should be encouraged. adopt innovations that improve it. The reading given here fits exactly into this two-sided view: “Cruel and unusual” is an hendiady that forbids not all innovation in punishment, but only innovation that brings new cruelty.
Second, this reading may lead to an investigation more suited to judicial decision-making. What makes this second advantage possible is that a hendiadic reading of the sentence allows for a broad, non-evaluative reading of “cruel.” If “cruel” is taken as an evaluative term, judges are forced to make absolute judgments about what is or is not cruel. This is a tough question. Of course some punishments are crueler than others, but the sticking point is the constitutional limit. If punishments are judged by their cruelty, in the sense of “unjustifiably cruel” or “maliciously cruel,” then the question is inevitably a moral one, one on which individual judgments are likely to vary widely. If the question is shifted to an inquiry into the subjective intentions and knowledge of government officials, individual judgments will diverge on that inquiry as well. Nor is the question made easier by directing it toward a historical moment, as in “What was considered cruel in 1791?” This is still an abstract moral question, but with the added difficulty of being a question that the present asks of the past.
But the judicial task changes if the sentence is read as hendiadia and “cruel” is understood in the sense of “harsh”. If what distinguishes constitutional punishments from unconstitutional ones is not whether they are “unjustifiably cruel,” but whether they are “innovatively harsh,” then judicial inquiry is comparative. Judges would not determine how much cruelty is constitutionally permissible, but would instead ask whether a punishment shows innovation in its harshness. This task is comparative and tends to be more amenable to judicial expertise.