Braatz on Penal Reform in the Late 18th Century

Erin Braatz, a former Samuel I. Golieb Fellow at the New York University School of Law, has posted The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century, which appeared in the Journal of Criminal Law and Criminology 106 (2016): 405-472:

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application.  These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption.  These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century.  This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms. 

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the founding generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic.  It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era.  Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe.  Foregrounding the content of both the experiments themselves and the debates over penal practice they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality.  It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.