Book Review: Cruel & Unusual: The American Death Penalty and the Founders’ Eighth Amendment

• Published date: 01 June 2013
• DOI: 10.1177/0734016812460244
• Author: James R. Acker
• Date: 01 June 2013
• Subject Matter: Book Reviews

Book Reviews

Book Reviews

John D. Bessler

Cruel & Unusual: The American Death Penalty and the Founders’ Eighth Amendment Boston,

MA: Northeastern University Press, 2012. xiv, 456 pp. $39.95. ISBN 978-1-55553-716-6

Reviewed by: James R. Acker, University at Albany, Albany, NY, USA

DOI: 10.1177/0734016812460244

University of Baltimore Law School Professor John D. Bessler’s scholarship on the death penalty

has ranged far and wide, seldom traversing ground already navigated by others. His prior works

include tracing how executions became transformed over time from ribald, public spectacles into

highly regimented rituals, secluded deep within prison walls, and carried out under cover of darkness

(Death in the Dark: Midnight Executions in America, Northeastern University Press, 1997); an

examination of lynchings and executions in his native Minnesota, which abolished capital punish-

ment in the early 20th century (Legacy of Violence: Lynch Mobs and Executions in Minnesota,

University of Minnesota Press, 2003); and a book he describes as ‘‘part memoir, part essay, and part

a telling of true stories [that] represents the culmination of my thinking about the death penalty’’

(Kiss of Death: America’s Love Affair With the Death Penalty, Northeastern University Press,

2003, p. xvi). Bessler’s most recent volume, Cruel & Unusual: The American Death Penalty and the

Founders’ Eighth Amend ment, demonstrates not only that he was premature in announcing that his

thinking about the death penalty had culminated but also his continuing penchant for probing issues

that have not been exhausted elsewhere in the vast literature devoted to capital punishment.

The heart of the book is a detailed, multifaceted examination of the elusive meaning of the Eighth

Amendment’s prohibition against ‘‘cruel and unusual punishments.’’ Bessler first looks backward

from 1789, when James Madison and his colleagues in the First Congress included that safeguard

among their proposed amendments to the newly adopted U.S. Constitution; protections designed

to guard against overreaching by the federal government that were drafted in response to calls

from several State ratifying conventions for a Bill of Rights to be appended to the founding charter.

Cruel and unusual punishments, or some close variant thereof, had previously been forbidden in the

English Bill of Rights of 1689, the 1776 Virginia Declaration of Rights, other original state consti-

tutions, and the 1787 Northwest Ordinance. Conceptually, the roots of the prohibition go much

deeper, arguably being grounded in the 1215 Magna Carta and its insistence that fines or

‘‘amercements’’ be proportioned to the gravity of the corresponding offense.

Substantial discussion is devoted to theimpact that Cesare Beccaria’s On Crimesand Punishments

(1764), withits impassioned call for moderatecriminal sanctions and imprisonment as an alternativeto

the death penalty, made on a number of the Founding Fathers and their contemporaries. Passages

quoted from this familiar tome offer reminders about why it was so influential when it was first pub-

lished and translated, and why it remains so frequently discussed and cited two and a half centuries

later. Philadelphia physician and activist Benjamin Rush, himself influenced by Beccaria, forcefully

advanced related arguments and stimulated reforms in the criminal laws of Pennsylvania and

Criminal Justice Review

38(2) 242-255

ª2012 Georgia State University

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