CRUEL AND UNUSUAL: The American Death Penalty and the Founders' Eighth Amendment

CRUEL AND UNUSUAL: The American Death Penalty and the Founders' Eighth Amendment. By John D. Bessler. Boston: Northeastern University Press. 2012.

"Nor shall cruel and unusual punishment be imposed." Professor Bessler, an associate professor at the University of Baltimore School of Law and an adjunct professor at the Georgetown University Law Center, focuses on these final eight words of the Eighth Amendment to the United States Constitution in his book Cruel and Unusual. This clause, applicable to the States via the Due Process Clause of the Fourteenth Amendment, is the only Constitutional limitation on the federal and state governments' authority to punish its citizens.

The Eighth Amendment also places substantive, but unspecified limitations, on bail and fines. While the imposition of bail or a fine can give rise to important ques- tions, the cruel and unusual punishment clause is the constitutional workhorse of the Eighth Amendment. This clause has been interpreted by the United States Supreme Court to require that the punishment of non-capital crimes be proportional, to require that the treatment of prisoners and the conditions of confinement be humane, and to prevent the use of torture or other unnecessarily painful treatment as punishment.

The Cruel and Unusual Punishment Clause is, most importantly, the constitu- tional provision that the United States Supreme Court has relied on to govern and give meaning to the use of the death penalty in the United States, both the methods of execution and the procedures by which the penalty may be imposed during the trial process. The opinions issued by the Supreme Court on the death penalty, primarily since 1972, rely on the history of the Amendment and its current use in America. Paralleling this structure, Professor Bessler explores both the Founding Fathers'...