EXPERIMENTAL PUNISHMENTS.

• Author: Stinneford, John F.

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, (or 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 stains 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.

INTRODUCTION 40 I. ORIGINAL MEANING AND THE SIGNIFICANCE OF USAGE OVER TIME 48 A. The Original Meaning of Unusual 48 B. The Original Meaning of Cruel 52 C. The Significance of Usage over Time 53 II. USAGE OVER TIME: THE HISTORY OF LONG-TERM SOLITARY CONFINEMENT 55 A. Reform and Conservation in the Founding Period 56 B. Nineteenth-Century Imprisonment and Long-Term Solitary 60 Confinement C. Solitary Confinement on the Margins: The 1880s to the 65 1980s D. Forgetfulness and Resurgence: The Rise of Supermax 69 E. Accidental Resurgence: The Extension of Time on Death Roxv 74 F. The Tide Withdraws? Gradual Diminishment of Long-Term 75 Solitary Confinement G. Is Long-Term Solitary Confinement a "Usual" Punishment? 76 III. MEASURING CRUELTY 77 A. Establishing a Baseline: Happiness in Prison 77 B. Suffering in Supermax 78 C. Dealing with Selection Bias: Studies Comparing Inmates in 81 Solitary Confinement to Those in the General Prison Population D. Is Solitary Confinement a Cruel and Unusual Punishment? 85 CONCLUSION--CONSTITUTIONAL AND PRACTICAL IMPLICATIONS 85 INTRODUCTION

Our entire criminal justice system is, in fundamental ways, experimental. Over the past two centuries, we have repeatedly changed what we do and how we do it in light of shifting political and social goals. These changes often occur quickly and without much understanding of what their effects will he. They cut across several axes:

What we punish. We have vastly expanded the scope of the criminal law, largely through the creation of regulatory crimes. Many of these new crimes permit punishment without any showing of blameworthy conduct or intent. (1) More recently, some legislatures have moved to permit punishment without culpability by eliminating traditional affirmative defenses like the insanity defense. (2) Why we punish. The traditional justification for punishment was retributive justice. (3) Today legislatures can draw from a hodgepodge of penal justifications, including retribution, deterrence, rehabilitation, incapacitation, or almost any regulatory purpose. (4) How much we punish. Numerous innovations in substantive criminal law, sentencing law, and judicial interpretation of criminal statutes (5) have resulted in longer sentences for many common crimes and an unprecedented level of incarceration. (6) How we punish. The modern prison system is largely a nineteenth-century invention, and it has been the subject of constant experimentation--to a far greater extent than most people understand--ever since. (7) We have also experimented with involuntary sterilization and chemical castration, and have invented at least three new methods of execution since the end of the nineteenth century. (8) Our experimental criminal justice system exists in tension with the United States Constitution, and particularly the Eighth Amendment. Under its original meaning, the Cruel and Unusual Punishments Clause prohibits cruel innovations--that is, punishments that are unjustly harsh in light of longstanding prior practice. (9) The Clause is premised on the idea that the longer a punishment is used, and the more universally it is received, the more likely it is to be just, reasonable, and to enjoy the consent of the people--for if it lacked these qualities it would fall out of usage. (10) On the other hand, new punishment practices that are significantly harsher than the baseline established by longstanding prior practice are cruel and unusual because they are unjust in light of the traditional practices they are replacing or supplementing. (11)

A punishment might be cruel and unusual because it is grossly disproportionate to the offense in light of prior practice. (12) For example, even skeptics of proportionality have accepted that a life sentence for a parking violation would be cruel and unusual because it is far out of proportion to the punishments traditionally given for this offense. (13) A punishment might also be cruel and unusual because it involves an inherently cruel method. For example, the rack is cruel and unusual because the Anglo-American punishment tradition has prohibited the use of torture for centuries. (14)

Each type of experimentation listed at the beginning of this Article creates a risk of cruel and unusual punishment. If we change what we punish by expanding the list of crimes--and particularly by permitting punishment in the absence of culpability--we are likely to indict punishments that are grossly disproportionate to an offender's desert. (15) Similarly, if legislatures change why they punish by designing punishments solely in light of utilitarian goals such as deterrence or incapacitation, some of those punishments will be grossly disproportionate to an offender's desert. (16) Innovations that change how much we punish by lengthening the sentences of traditional crimes are also likely to result in gross disproportionality. (17) Finally, when we change how we punish by adopting new methods of punishment, the new methods may turn out to be inherently cruel. (18)

The Cruel and Unusual Punishments Clause does not prohibit all new punishments, nor does it permit all old ones. A new punishment practice that is not significantly harsher than the traditional practices it replaces is not cruel and unusual. (19) Similarly, an old punishment practice that falls out of usage for multiple generations is no longer "usual," because it has not withstood the test of time. (20) If such a punishment is later revived, it is a new punishment and is to be judged against the tradition as it has survived up to today. (21)

In other words, the Cruel and Unusual Punishments Clause contains a principle of legal development. (22) Over time, some punishments fall out of the tradition and others become part of it. But in principle, the harshness of the system is supposed to remain steady, so as to ensure compliance with unchanging standards of justice and individual desert. (23) Like the common law on which it is based, the Cruel and Unusual Punishments Clause is supposed to guarantee that the criminal justice system will be like the ship of the Argonauts, replacing every board as it goes on its journeys but remaining the same ship. (24) For this process to succeed, however, we must ensure that the new boards arc sufficiently like the old boards that they may appropriately become part of the ship.

This Article is all about those boards. It asks how we can determine whether a new punishment is sufficiently similar to traditional punishments that it may become part of our constitutional tradition, particularly when it is difficult to compare the new punishment to traditional punishments at the time it is adopted. (25) The most difficult problem of commensurability arises when the government introduces a new method of punishment. If a legislature simply lengthens a sentence for a given crime, it is relatively easy to determine whether the new punishment is grossly disproportionate to the crime in light of prior practice. But if the legislature replaces an old method with a new one--for example, replacing public Hogging or pillorying with a term in prison--it is not always obvious how to compare the two methods. This is particularly true when the new method is advertised as more "progressive," "humane," or "scientific." (26)

We can solve the commensurability problem by examining the usage of a new punishment over time. Usage over time reveals two types of information that may not be apparent at the time the punishment is adopted. First, it shows how society responds to the punishment over time. Some punishments achieve universal reception and maintain this status over a period of numerous generations; others do not. Second, usage over time reveals characteristics of the punishment that may not be obvious at the time of adoption--particularly, the harshness of the suffering the punishment inflicts relative to the harshness of the traditional punishments it replaced. For example, we have a lot...