Cruel AND Unusual?

On Monday, the Supreme Court will hear argument in an Eighth Amendment case, City of Grants Pass, Oregon v. Johnson. One thing I will be watching for is whether the justices in their questions treat "cruel and unusual" as two separate requirements, or as one.

Here are a few paragraphs from "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution:

Read as a hendiadys, "cruel and unusual" would mean "unusually cruel." If "unusual" is taken as a term of art meaning "contrary to long usage," then the hendiadys would mean "innovatively cruel."

If "cruel and unusual" means "innovatively cruel," then there are no sequenced inquiries into whether a punishment is "cruel" and then "unusual." There is a single inquiry into innovation in cruelty. It is true that one could break this single inquiry into two analytical steps. First, is this punishment innovative? Second, does this punishment's innovation increase cruelty? Yet that is very different from the two steps associated with a two-requirements view. Those who see the phrase as containing two requirements typically ask first whether a punishment is cruel and then whether it is unusual, treating the two as distinct and unrelated inquiries. But if the phrase is taken as a hendiadys, as an essential unity, then these two inquiries—is the punishment innovative? and does the innovation increase cruelty?—are not really distinct at all. One tells the interpreter to look for innovation; the other tells the interpreter what type of innovation to look for.

In short, if the phrase is taken as a hendiadys, the prohibited punishments would not be ones that merely happen to be both cruel and unusual. Rather, the Clause would prohibit punishments that are new in their cruelty. A new, more painful form of capital punishment; a new, more damaging mode of incarceration (perhaps such as solitary con- finement); a new, more demeaning restriction on the freedom of movement of released offenders—all would be "innovatively cruel."

. . .

The fears expressed by the Anti-Federalists were not without foundation. 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] offender . . . be delivered to a surgeon for dissection."

In other words, the concern behind the Cruel and Unusual Punishments Clause was about progress. But it was not Herbert Spencer's view of social progress as much as it was William Hogarth's view of the rake's progress. Times change and things can go downhill, and when they do, there needs to be something in the Constitution to resist the devolving standards of decency.

A slide into severe punishments was not, however, thought to be inevitable. Although there was little discussion of the Cruel and Unusual Punishments Clause at the time of its ratification, what discussion there was shows a more subtle, two-sided view of innovation: Legislators should be constrained from innovations that increase cruelty, but they should be encouraged to adopt innovations that ameliorate it. The reading given here exactly fits that two-sided view: "Cruel and unusual" is a hendiadys that prohibits not all innovation in punishment, but only innovation that brings new cruelty.

Second, this reading can lead to an inquiry that is better suited to judicial decision making. What makes this second advantage possible is that a hendiadic reading of the phrase allows 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. That is a difficult question. Of course some punishments are more cruel than others, but the point of difficulty is the constitutional cut-off. If punishments are be- ing judged on whether they are cruel in a sense like "unjustifiably cruel" or "malevolently cruel"—then the question is an inescapably moral one, a question 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, that inquiry too is one on which individual judgments will diverge. Nor is the question made easier by directing it towards a moment in history, as in, "What was considered cruel in 1791?" That is still an abstract moral question, yet with the added difficulty of being a question the present is asking of the past.

But the judicial task changes if the phrase is read as a hendiadys and "cruel" is understood in the sense of "harsh." If what sorts the constitutional punishments from the unconstitutional ones is not whether they are "unjustifiably cruel," but whether they are "innovatively harsh," then the judicial inquiry is a comparative one. Judges would not be determining the quantum of cruelty that is constitutionally permissible, but they would instead be asking whether a punishment shows innovation in its harshness. This task is comparative, and such a task tends to be more amenable to judicial competence.