Experimental Punishments

John F. Stinneford*

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 lethal injection to death by hanging. When the new method of punishment is introduced, it is often an experimental punishment whose constitutional status is not immediately clear.

This Article shows how usage over time clarifies the constitutional status of experimental punishments by revealing two types of data that may not be available at the time the punishment is adopted. First, the degree of stable reception the punishment achieves over time indicates whether society has accepted the punishment as consistent with the overall tradition. The Eighth Amendment is premised on the idea that long usage is the most reliable method of determining what is cruel and what is not. The longer a practice is used, and the more universally it is received, the more likely it is to comport with the demands of justice. On the other hand, failure to achieve long usage may be powerful evidence that a punishment is cruel. Second, usage over time can reveal more clearly how harsh the effects of the punishment are in comparison to traditional punishments. Innovations in punishment such as long-term solitary confinement, involuntary sterilization, and three-drug lethal injection all appeared “progressive” and “humane” when first adopted, but usage over time has shown their effects to be unjustly harsh in comparison with the practices they have replaced.

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© 2019 John F. Stinneford. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, University of Florida Levin College of Law, Gainesville, Florida. I thank Albert Alschuler, William Baude, Samuel Bray, Marc DeGirolami, Sharon Dolovich, Daniel Greenfield, Aziz Huq, Saul Levmore, Nick McLean, Alexander Reinert, John Robinson, Stephen Sachs, Margo Schlanger, David Shapiro, participants in the Law, Practice, and Policy of Incarceration Roundtable discussion at the University of Michigan Law School, the National Conference of Constitutional Law Scholars at the University of Arizona James E. Rogers College of Law, and faculty workshops at Notre Dame Law School and George Mason University Antonin Scalia Law School for helpful comments on an earlier version of this draft. I also thank the University of Florida Levin College of Law for a generous research grant that made this Article possible.