Law Commons^™

Experimental Punishments, John F. Stinneford

Notre Dame Law Review

The Cruel and Unusual Punishments Clause prohibits, under its original meaning, punishments that are unjustly harsh in light of longstanding prior practice. The Clause does not prohibit all new punishments; rather, it directs that when a new punishment is introduced it should be compared to traditional punishments that enjoy long usage. This standard presents a challenge when the government introduces a new method of punishment, particularly one that is advertised as more “progressive” or “humane” than those it replaces. It may not always be obvious, for example, how to compare a prison sentence to a public flogging, or death by …