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Intriguing HLR note on the history of punishment and the Eighth Amendment

By Douglas A. Berman

The latest issue of the journal that our new President once ran includes an intriguing Note titled, "The Eighth Amendment, Proportionality, and the Changing Meaning of 'Punishments'."  This Note discusses punishment history, a topic I always find interesting, in service of an argument about the appropriate way to interpret the Eighth Amendment for monder times.  Here is a key paragraph from the Note's first few pages: This Note insists ... that one cannot effectively discuss the Eighth Amendment in terms of original intent without examining the word that follows ?cruel and unusual? in the constitutional text.  The system of ?punishments? that existed at the time of the Founding was fundamentally different from that which exists today.  The Cruel and Unusual Punishments Clause was written in the context of a system that relied to a large extent on public participation in punishments...continue to full post

Full post as published by Sentencing Law and Policy on January 21, 2009 (boomark / email).