by Matt Barr

Unusual

What does the Eighth Amendment mean by "unusual"? One SCOTUSblog commenter suggests:

Indeed, there is nothing to suggest that "unusual" means anything other than what it says, and I would have hoped that a supposed strict constructionist like Scalia would know that, but his eagerness to see criminals die may have gotten in the way of his jurisprudence.

If something is not done by any other nation, it is, per force, unusual. How hard is that to understand?

I commented thusly (without links):

"Unusual" should indeed mean what it says, which is: a State can't treat one convict differently than similarly situated convicts. Is the death penalty authorized to be considered and imposed on others like Simmons in Missouri?

The punishment would be "unusual," per the plain meaning of that word, if Missouri did not have the death penalty, but made an exception in Simmons' particular case. Or if the jury sentenced him to have his arm and ear hacked off. Or held underwater for five minutes.

The rule of law and, if I may be intemperate enough to suggest, the Eighth Amendment itself, should require that punishments be designated beforehand and applied by objective, standard procedures.

If we're to consider whether a punishment is authorized in other countries in order to square it with the "unusual" provision of the Eighth Amendment, shouldn't we be prepared for State laws authorizing flogging, torture, beatings and mutilation?

Browse books from Amazon.com: