{"id":829,"date":"2020-05-27T19:20:27","date_gmt":"2020-05-27T23:20:27","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/constitution-center\/?page_id=829"},"modified":"2025-05-12T11:07:33","modified_gmt":"2025-05-12T15:07:33","slug":"text-tradition-and-today-john-stinnefords-originalist-reading-of-the-cruel-and-unusual-punishments-clause-challenges-the-carceral-state","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/constitution-center\/news-events\/text-tradition-and-today-john-stinnefords-originalist-reading-of-the-cruel-and-unusual-punishments-clause-challenges-the-carceral-state\/","title":{"rendered":"Text, Tradition, and Today: John Stinneford\u2019s Originalist Reading of the Cruel and Unusual Punishments Clause Challenges the Carceral State"},"content":{"rendered":"

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\u2019s Resident Scholar and Professor John Stinneford (University of Florida Levin College of Law). Back in fall 2015,\u00a0 Professor Stinneford joined the Georgetown Center for the Constitution as a Visiting Scholar<\/a> where he researched and wrote The Original Meaning of \u2018Cruel\u2019<\/em><\/a> later published in the Georgetown Law Journal<\/em> in 2017 (Vol. 105).\u00a0 Serving as a Non-Resident Scholar of the Center, Stinneford\u2019s influential scholarship on the Eighth Amendment of the Constitution has reached the Supreme Court and is frequently cited by judges.<\/p>\n

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.\u00a0 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.\u00a0 Justices Ginsburg, Stevens, and Breyer \u2013 no fans of originalism \u2013 have also cited Stinneford\u2019s work in written opinions or published writings.\u00a0 Most recently, Ninth Circuit Judge Bumatay cited Stinneford\u2019s scholarship in a powerful dissent.<\/p>\n

Stinneford\u2019s scholarship is centered around his main argument that the phrase \u201ccruel and unusual\u201d means \u201cunjustly harsh in light of longstanding prior practice.\u201d\u00a0 At the time the Eighth Amendment was adopted, the word \u201cunusual\u201d was a term of art referring to new governmental practices that violate rights established through the long usage of the common law.\u00a0 Although today, many people think of the common law as \u201cjudge-made\u201d law, prior to the 1900s, it was thought of as a kind of customary law \u2013 the law of \u201ccustom and long usage.\u201d\u00a0 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 \u201clong usage\u201d guaranteed that it was just, reasonable, and enjoyed the consent of the people.\u00a0 If it lacked any of these qualities, it would either never achieve long usage, or would eventually fall out of usage.<\/p>\n

Original Meaning: Basis in Common Law<\/u><\/p>\n

This conception of the common law, Stinneford argues, gave rise to the concept of rights enforceable against the sovereign.<\/p>\n