Bessler on the Forgotten Origins of "Cruel and Unusual Punishments"

[We're moving this up, because the article is now out in the British Journal of American Legal Studies. DRE]

John D. Bessler, University of Baltimore School of Law, has posted Lost and Found: The Forgotten Origins of the "Cruel and Unusual Punishments" Prohibition, which is forthcoming in the British Journal of American Legal Studies:

The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment's prohibition against "cruel and unusual punishments" to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II's reign, "illegal and cruel punishments" had been "inflicted," with its tenth clause then declaring in hortatory fashion: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The prohibitions against excessive bail and excessive fines and the final phrase-"nor cruel and unusual punishments inflicted"-were later incorporated into the Virginia Declaration of Rights (1776), various state constitutions, and the U.S. Constitution's Eighth Amendment. One legal scholar, Anthony Granucci, once described the wording of the English bar on "cruel and unusual punishments" as the product of "chance and sloppy draftsmanship," concluding that American lawmakers, in adopting the Eighth Amendment, misinterpreted "the intent of the drafters of the English Bill of Rights." The Eighth Amendment famously reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Credit: Internet Archive

The U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the "cruel and unusual punishments" language, with Justice Thurgood Marshall, relying on Granucci's Eighth Amendment scholarship, observing that the use of "unusual" in the English Declaration of Rights "appears to be inadvertent." This Article demonstrates that the conventional account of the origins of the "cruel and unusual punishments" phraseology-spelled "cruell and unusuall punishments" in some early English sources-is woefully incomplete. The standard account of how that terminology first emerged during the Revolution of 1688-1689, popularly known as the "Glorious Revolution," fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology. Those usages stretch back as far as the early 1600s, during the reign of King James I, though they initially appear in non-legal contexts (i.e., in a history of Venice translated from French into English and published in 1612; in English courtier and poet George Wither's satire, Abuses Stript, and Whipt, first published in the early 1610s; and in 1642 Irish Catholic Remonstrances from Ulster following an Irish rising in 1641). Because of the terminology's prior appearances in those places, the use of the cruel and unusual punishments phraseology in the English Declaration of Rights was almost certainly neither inadvertent nor the product of sloppy drafting.

--Dan Ernst

Bentham, the Panopticon, and "A Picture of the Treasury"

Jeremy Bentham (NYPL)

[Via H-Law, we have the following announcement.  DRE]

Jeremy Bentham, the Panopticon penitentiary scheme, and "A Picture of the Treasury"

The aim of the conference is to discuss the forthcoming critical edition of "A Picture of the Treasury" in The Collected Works of Jeremy Bentham (UCL Press), publishing for the first time Bentham’s personal account of his dealings with the government, most notably the Treasury department, but also the Home Office, in his attempts to erect, and to become governor of, a panopticon penitentiary.

"A Picture of the Treasury" (written in 1802) contains Bentham’s highly detailed reflections on his dealings with and treatment by government officials between 1798 and 1802, and gives a unique insight into how he felt at this time. He exposes the individuals by whom, and administrative processes and malpractices by which, he believed his interests, and the public interest at large, had been thwarted. Bentham states, for instance, that his "adversary," the British government, had all along sought to abandon the panopticon scheme by making things so drawn out that he might have been "provoked … beyond endurance," give up through "weariness and despondency," or simply die—die either "in the natural way of things," as a result of "wear and tear of vexations and disappointments," or even by him being driven to suicide.

The text consists of twenty-four sections, which are interspersed with over one hundred pieces of documentary evidence, including letters sent and unsent, extracts from official documents and third-party correspondence, alongside Bentham’s own commentary, all of which, Bentham says, might serve in prompting people to ask, "Well—and when this came out—what were your feelings?—and how did you endure it?"

To register and for more details, and to download a preliminary version of A Picture of the Treasury, please visit the conference website [here].  

Schedule after the jump.

Bessler's "Death Penalty's Denial of Fundamental Human Rights"

The Death Penalty's Denial of Fundamental Human Rights: International Law, State Practice, and the Emerging Abolitionist Norm, by John Bessler, University of Baltimore, is due out next month from Cambridge University Press, in its series, ASIL Studies in International Legal Theory:

The Death Penalty's Denial of Fundamental Human Rights details how capital punishment violates universal human rights-to life; to be free from torture and other forms of cruelty; to be treated in a non-arbitrary, non-discriminatory manner; and to dignity. In tracing the evolution of the world's understanding of torture, which now absolutely prohibits physical and psychological torture, the book argues that an immutable characteristic of capital punishment-already outlawed in many countries and American states-is that it makes use of death threats. Mock executions and other credible death threats, in fact, have long been treated as torturous acts. When crime victims are threatened with death and are helpless to prevent their deaths, for example, courts routinely find such threats inflict psychological torture. With simulated executions and non-lethal corporal punishments already prohibited as torturous acts, death sentences and real executions, the book contends, must be classified as torturous acts, too.

Here is a post on the book in which Professor Bessler explains how Cesare Beccaria and other Enlightenment thinkers understood torture differently than we do today.  And here is an appearance by Professor Bessler on German TV during the recently concluded 8th World Congress Against the Death Penalty.  Finally, here is the book’s TOC:

Introduction
1. The death penalty: from draconian legal codes to the enlightenment
2. The abolitionist movement: state practice, international law, and global progress
3. Death threats and the law of torture: the death penalty's inherently cruel and torturous characteristics
4. Human dignity and the law's evolution: prohibiting capital punishment through a jus cogens norm
Conclusion

 

--Dan Ernst

Jouet on Camus's (and Amsterdam's) Influence on Furman

Mugambi Jouet, McGill Faculty of Law, has posted A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment, which is forthcoming in the American Journal of Criminal Law:

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application. This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court. The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment. This is truer of the Furman decision itself than of the way the case was litigated. Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity. Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath. Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus. “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs. The architect of this strategy was Anthony Amsterdam, a famed litigator. Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims. This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows. On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations. 

--Dan Ernst

Black's "Gender and Punishment in Ireland"

Lynsey Black, Maynooth University, has published Gender and Punishment in Ireland: Women, Murder and the Death Penalty, 1922-64 (Manchester University Press):

Drawing on comprehensive archival research, including government documents, press reporting, the remnants of public opinion and the voices of the women themselves, the book contributes to the burgeoning literature on gender and punishment and women who kill. Engaging with concepts such as 'double deviance', chivalry, paternalism and 'coercive confinement', the work explores the penal landscape for offending women in postcolonial Ireland, examining in particular the role of the Catholic Church in responses to female deviance. The book is an extensive interdisciplinary treatment of women who kill in Ireland and will be useful to scholars of gender, criminology and history.

--Dan Ernst

Belt, "Mass Institutionalization and Civil Death"

The New York University Law Review has published "Mass Institutionalization and Civil Death," by Rabia Belt (Stanford Law School). The abstract:

Most scholars who study felon disenfranchisement trace its roots back to Reconstruction. Southern states drew up laws to disenfranchise people convicted of felonies as an ostensibly race-neutral way to diminish the political power of newly freed Black Americans. Viewed against this historical backdrop, the onset of mass incarceration in the current era expands the impact of a practice intended to be both racist and punitive from the start.

This account is true, but it is incomplete. Non-criminal mass institutionalization has also played—and continues to play—a role in systematic disenfranchisement. Marshaling a wealth of archival and historical evidence, from newspapers, legislative debates, congressional hearings, and court cases, I reveal that institutional disenfranchisement is not just about mass incarceration—a singular phenomenon sparked by the Civil War that happens solely within the carceral state and targeted only freed Black people. Institutional disenfranchisement began much earlier, included more spaces than the prison, and initially targeted white men. Indeed, the more familiar prison disenfranchisement had a shadowy twin within the welfare state. Civil death includes more ghosts than previously imagined.

Read on here. The article appears as part of a symposium on "Voting and Representation: New Issues and Challenges."

-- Karen Tani

Talking Legal History: Chase's "We Are Not Slaves"

A new episode of Talking Legal History, a podcast hosted by Siobhan M. M. Barco, is now up on the website of the American Society of Legal History.

In this episode, Siobhan talks with Robert Chase about his book, We Are Not Slaves: State Violence, Coerced Labor, and Prisoners’ Rights in Postwar America (University of North Carolina Press, 2020). Chase is Associate Professor of History at Stony Brook University.

In We Are Not Slaves, Chase draws from three decades of legal documents compiled by prisoners to narrate the struggle to change prison from within. Told from the vantage point of the prisoners themselves, this book weaves together untold but devastatingly important truths from the histories of labor, civil rights, and politics in the United States as it narrates the transition from prison plantations of the past to the mass incarceration of today.

This episode is part of a series featuring legal history works from UNC Press. Support for the production of this series was provided by the Versatile Humanists at Duke program.

--Dan Ernst

Resnik on "Ruinous" Punishments under the 8th Amendment

Judith Resnik, Yale Law School, has posted (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin,’ which appeared in The Yale Law Journal Forum:

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states. The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.” Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment. In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment. I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance. I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent an-ti-ruination principle that all branches of government need to implement.

--Dan Ernst

Bessler's "The Baron and the Marquis"

John D. Bessler, University of Baltimore Law School, has published The Baron and the Marquis: Liberty, Tyranny, and the Enlightenment Maxim That Can Remake American Criminal Justice, with Carolina Academic Press:

The Baron and the Marquis explores the history of the maxim that articulates what is now known as the parsimony principle. That maxim: any punishment that goes beyond necessity is “tyrannical.” First articulated by Baron de Montesquieu and later publicized by the Italian criminal-law theorist, the Marquis Beccaria, that maxim shaped the American and French Revolutions and set the dividing line between tyranny and liberty. Thomas Jefferson believed only absolute necessity justified punishment, and the French Declaration of the Rights of Man and of the Citizen (1789) similarly allowed only “strictly and obviously necessary” punishments. In The Baron and the Marquis, award-winning author John Bessler shows the maxim’s modern-day implications for capital punishment, prolonged solitary confinement, and mass incarceration. The book argues that unnecessary punishments violate the U.S. Constitution’s Eighth Amendment as “excessive” and “cruel and unusual.”

Weekend Roundup

• WaPo’s Fred Barbash on my Georgetown Law colleague John Mikhail: "Trump’s ‘emoluments’ battle: How a scholar’s search of 200 years of dictionaries helped win a historic ruling."  Update: CNN’s Chris Cillizza’s email interview of Professor Mikhail.  DRE

• Now online on C-SPAN: Last month's National History Center briefing, on the History of US Trade Policy.

• Greg Taylor, University of Adelaide School of Law, has posted The Grand Jury of New Zealand, which appeared in LAWTALK 919 (July 2018): “Little is remembered of the grand jury of New Zealand nowadays, but it existed within living memory – after 118 years of operation starting in 1844, the last grand jury sat in Gisborne on 28 November 1961. As late as July 1961 a grand jury in Hamilton refused to permit a prosecution against an electricity worker for failing to provide the necessary safety equipment and thereby causing the death of a worker.”

• This week in the Washington Post's "Made by History" section: Alison Lefkovitz (New Jersey Institute of Technology/Rutgers-Newark) on "Jordan Peterson and the Return of the Men's Rights Movement."

• ICYMI: Josh Blackman & Seth Barrett Tillman on Lawfare: Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?  Seth Barrett Tillman, What is the "Privilege" of the Writ of Habeas Corpus? on New Reform Club. Michael Klarman in the Harvard Gazette: Are there holes in the Constitution?

• From "Talking Points Memo": Gregory Downs (UC Davis) on the 150-year history of today's voter suppression tactics.

• On the University of Leicester's Carceral Archipelago: Katy Roscoe on 19th-c. Gibraltar convicts and the sea.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.