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Wednesday, October 24, 2007

New Article Spotlight: The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation

Stinne Florida Coastal School of Law CrimProf John F.G. Stinneford recently published an article titled The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation.  Here is the Abstract:

"Very briefly, my argument is that the word unusual was a term of art that referred to government practices that deviate from long usage. Under the common law ideology that came to the framers through Coke, Blackstone, and various others, the best way to determine whether a government practice comported with basic principles of justice was to ask whether it enjoyed long usage - that is, whether is was continuously employed throughout the jurisdiction for a very long time. The opposite of a practice that enjoys long usage is an unusual practice, or an innovation. The word unusual is included in the Cruel and Unusual Punishments Clause to direct courts to give scrutiny to new or innovative punishment practices; the assumption underlying the Clause being that when the government innovates in the realm of punishment, it often does so in the direction of greater cruelty.

The implications of recognizing the original meaning of unusual are not merely academic. In recent decades, both Congress and state legislatures have significantly increased the penalties imposed on criminal offenders for a wide range of crimes. Seven states have imposed the previously unthinkable punishment of chemical castration on sex offenders, and several more are currently debating the imposition of surgical castration - a punishment practice that fell out of usage in England in the 13th century. Such new punishments are often highly popular, and by that measure they comport with current standards of decency, which is the standard the Court now uses to determine whether a punishment violates the Eighth Amendment. Without a renewed recognition of the significance of the word unusual, courts will be powerless when faced with the primary danger against which the Cruel and Unusual Punishments Clause was designed to protect: The tyranny of enflamed majority opinion."

CrimProf Stinneford comes to the Florida Coastal School of Law with a variety of experience in both law practice and teaching. He served as a law clerk to Judge James Moran of the United States District Court for the Northern District of Illinois, a litigation associate for the law firm Winston & Strawn, and as an Assistant United States Attorney for the Northern District of Illinois.  He has also served as a member of the clinical faculty at the University of Chicago Law School, and the lawyering skills faculty at the University of Dayton School of Law.  His primary teaching and research interests concern criminal law, criminal procedure, and sentencing policy. [Mark Godsey]

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