Ongoing criminal justice reform efforts at the national and state level might take stock of the scholarship on the Cruel and Unusual Punishments Clause by the Center’s Resident Scholar and Professor John Stinneford (University of Florida Levin College of Law). Back in fall 2015,  Professor Stinneford joined the Georgetown Center for the Constitution as a Visiting Scholar where he researched and wrote The Original Meaning of ‘Cruel’ later published in the Georgetown Law Journal in 2017 (Vol. 105).  Serving as a Non-Resident Scholar of the Center, Stinneford’s influential scholarship on the Eighth Amendment of the Constitution has reached the Supreme Court and is frequently cited by judges.

Thanks to his research, Professor Stinneford is recognized as a premier scholar of the original meaning of the Eighth Amendment. His scholarship has been cited in numerous federal and state court opinions.  Justice Gorsuch repeatedly cited one of his articles in the first Supreme Court majority opinion in decades based explicitly on the original and historical understanding of the Cruel and Unusual Punishments Clause.  Justices Ginsburg, Stevens, and Breyer – no fans of originalism – have also cited Stinneford’s work in written opinions or published writings.  Most recently, Ninth Circuit Judge Bumatay cited Stinneford’s scholarship in a powerful dissent.

Stinneford’s scholarship is centered around his main argument that the phrase “cruel and unusual” means “unjustly harsh in light of longstanding prior practice.”  At the time the Eighth Amendment was adopted, the word “unusual” was a term of art referring to new governmental practices that violate rights established through the long usage of the common law.  Although today, many people think of the common law as “judge-made” law, prior to the 1900s, it was thought of as a kind of customary law – the law of “custom and long usage.”  This means that if a practice was universally received and used over a period of multiple generations, it could be enforced as law even though it had never been ordered by the sovereign, because “long usage” guaranteed that it was just, reasonable, and enjoyed the consent of the people.  If it lacked any of these qualities, it would either never achieve long usage, or would eventually fall out of usage.

Original Meaning: Basis in Common Law

This conception of the common law, Stinneford argues, gave rise to the concept of rights enforceable against the sovereign.

• According to Stinneford, common law thinkers noticed that rulers (whether king, president, or legislature) often created law that was unjust and unreasonable in comparison to the longstanding customs of the common law. He says that, eventually, the idea grew that there were some things that even the sovereign could not do, because they violated rights that enjoyed long usage.
• Many scholars agree that this idea ignited the American Revolution. Stinneford says, that “It also served as the basis for the Cruel and Unusual Punishments Clause which forbids (under its original public meaning) new punishment practices that are harsher than traditional practices that enjoy long usage.”

Original Meaning: Legal and Cultural Change

The original meaning of the Cruel and Unusual Punishments Clause, under Stinneford’s reading, accounts for legal and cultural change over time.

• The great common law thinker Edward Coke wrote that “Custom loses its being if usage fails.” In other words, if a once-traditional punishment practice stops being used for multiple generations, it ceases to be part of the tradition because it has failed the “test of time.”  Thus punishments acceptable in 1790, such as the death penalty for relatively minor crimes such as counterfeiting, might be unconstitutional if they were reintroduced today.
• In practical terms, a judge considering the question would have to compare the punishment to the tradition as it has survived up to now. Similarly, a new punishment practice might become part of the tradition if it achieves universal reception and maintains this status over multiple generations.  In fact, this is what has happened with imprisonment, which was a new method of punishment in the late Eighteenth Century, but has enjoyed universal reception for nearly two centuries since then.

Original Meaning: Idea of Proportionality

Stinneford’s reading of the Cruel and Unusual Punishments Clause encompasses the idea of proportionality.

• Contrary to Justice Scalia’s stated view, the Clause was not originally intended to prohibit only barbaric methods of punishment, but also punishments that are disproportionate to the offense. Justice Scalia worried that proportionality review would be so indeterminate that it would allow judges to simply assert their own policy preferences over those of the legislature.  But this is not so.
• The questions judges must ask is simply: “How does the harshness of this punishment compare to that of punishments traditionally given for this type of crime?” If the new punishment is not significantly harsher than the traditional one, it is not cruel and unusual.

Original Meaning: Practice

Stinneford’s scholarship on the original meaning of the Cruel and Unusual Punishments Clause poses real-world applications in today’s society of harsh punishments.

• Stinneford has argued that both lethal injection and long-term solitary confinement are cruel and unusual under the original meaning of the Clause.
• He has also argued against modern innovations such as strict liability felonies and statutes that eliminate traditional common law defenses like the insanity defense.
• More generally, he has noted that long prison sentences for relatively minor offenses – such as California’s infamous “Three strikes and you’re out” statute – may violate the original meaning of the Eighth Amendment.

Stinneford is part of a growing group of committed originalists and says that the original meaning of the Constitution will often lead to just results and that it is a more reliable approach to constitution interpretation. He says that his commitment to originalism “arises from the nature of the United States as a constitutional democracy with a written constitution.  Commitment to the rule of law and to democracy implies the judges may only strike down a law enacted by the people’s representatives when it conflicts with a higher law actually adopted by the people themselves,” Stinneford says. “If judges had free-floating authority to strike down any law they deemed unjust, they would place themselves above the people in the constitutional order.  Judges simply do not have this authority.”

Stinneford’s active scholarship is making a practical difference as he submits his work to judges to aid them in their decision-making. He has submitted a number of amicus briefs attacking the constitutionality of long-term solitary confinement. Professor Stinneford credits his time at the Center for the Constitution as foundational for his development as a scholar.  “It was an amazing privilege to have unrestricted time to engage in research, with the full resources of a world-class university like Georgetown at my disposal,” Stinneford says. “But more importantly the time I spent with scholars like Randy Barnett and Larry Solum helped me think through many foundational questions and get a larger perspective on the law and on legal scholarship. I am a better person and scholar because of my time at the Georgetown Center for the Constitution.”

“A scholar like John Stinneford is why we created our Visiting Scholars program,” says the Center’s Faculty Director, Professor Randy Barnett. “His research is so impressive, we invited him to discuss his research at our Originalism Summer seminar this year, where his lecture was a big hit with our superstar students, Professor Barnett observed. “He has earned a permanent place on our faculty.”

“Professor Stinneford’s work on the Eighth Amendment is remarkable and important.  It has already begun to influence judges and scholars,” says Professor Lawrence Solum. “This is the kind of rigorous work that gives originalism a good name!”