Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary dis-cretion over the infliction of the death penalty. All three accounts face familiar and formidable historical challenges. There is general agree-ment that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685. Yet, although the methods of punishment inflicted on Oates—two days of horrific flog-ging, recurring stands in the pillory, and life imprisonment—were horrific, they were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First U.S. Congress in 1790. None of the major interpretations of “cruel and unusual punishment” accounts for this puzzling aspect of the aftermath of the Oates case. Nor do they explain the adoption of the Eighth Amendment, which pri-marily responded to Anti-Federalist fears that Congress might adopt torturous methods of capital punishment. Prevailing theories fail to ac-count for the disconnect between what the English provision did and what the American provision meant to do.
This Article argues that prevailing accounts are breathtakingly in-complete. The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641. Sentenc-ing Oates, Jeffreys claimed for King’s Bench all the Star Chamber’s lawless power to determine punishments less than capital. The English Article 10 repudiated this attempt to resurrect the Star Chamber. Then Congress, responding to Anti-Federalist fears about Congress adopting European-style executions by torture, freighted the “cruel and unusual” language with two additional meanings. The clause now applied to capital, as well as noncapital, penalties. It now also restricted legislative as well as judicial discretion. Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment for-bids lawless discretion in both capital and noncapital cases, and torturous methods of punishment. Proportionality was left to the leg-islature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.
At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature. It may also be, practically speaking, a matter of life and death.
