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A Group of States Can Collectively Restore Various Old Punishments by Making Them “Usual” Again Instead of “Unusual”
Andrew Hyman

When the framers of the Constitution banned cruel punishments that are “unusual,“ they may well have had foremost in mind cruel punishments that are contrary to long usage.  But, courts nowadays also emphasize current geographic unusualness, in addition to historical unusualness, and thus federal courts often engage in headcounting of states. Once a headcount is used to strike down a punishment, states are understandably reluctant to try resuscitating that punishment. However, the ban on “cruel and unusual punishments” need not operate as a one-way ratchet that permanently locks in punishment reductions.  The ban on cruel and unusual punishments does not prevent states from cooperatively resuscitating a punishment that has been properly struck down by the courts, assuming that the punishment was not unusual during some lengthy part of U.S. history.

Law Professor Jeffrey Usman wrote in 2018 about the potential use of contingent legislation to counter the one-way ratchet effect.   Legislation mandating a punishment can expressly say that it will not take effect unless a certain number of states and/or Congress implement similar legislation, and so the punishment in question can thus be rendered “usual” instead of “unusual.”   According to Usman, “Based upon existing Supreme Court precedent, sixteen states seems an appropriate, though admittedly somewhat arbitrary, choice.”

A 2008 U.S. Supreme Court case suggests that many states do not realize their own power in this regard.  As Justice Alito wrote at that time in the case of Kennedy v. Louisiana (for himself and three other justices), previous Supreme Court dicta had “stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency.”  Unfortunately, that stunting effect may have been inadvertently prolonged beyond 2008 by a remark that Justice Scalia made (joined by Chief Justice Roberts): “the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case....”  So why would a legislator try to go against the majority’s decision?  Actually, Justice Kennedy’s majority opinion in that case did show some respect for the views of the American people (citations omitted):

There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society.  These statistics confirm our determination from our review of state statutes that there is a social consensus against the death penalty for the crime of child rape.

Notice that I suggested (above) legislation “mandating” a punishment.  State legislation that merely “allows” courts or juries to impose a punishment might not be enough, per the Court’s opinion in Kennedy v. Louisiana (blockquoted above).  In the context of child rape, for example, legislators could require the death penalty in virtually all cases where an adult defendant who is not mentally disabled rapes multiple victims under the age of fourteen causing serious physical injury to them.  Putting child rape aside, similar observations apply to all kinds of punishments for all kinds of crimes, and legislators are not helpless before a court system that decides all by itself what punishments are appropriate or inappropriate.  After all, that’s why the word “unusual” is in the Eighth Amendment.

Once the courts have correctly deemed an old punishment to be “cruel and unusual,” can it eventually become usual again?  Of course it can. Many punishments are initially very unusual but later become usual, such as electronic tagging during home confinement, or speeding tickets (the first one in 1896 was for speeding at 8 mph in a 2 mph zone).  If the new punishment is the same as (or no more onerous than) a punishment that had long been widely accepted in the United States (e.g. when the constitutional clause took effect), then there likely is no obstacle preventing legislatures from cooperatively implementing it once again, notwithstanding an intervening court decision that correctly struck it down for having become unusual.  Of course, courts obviously cannot strike down punishments merely because they think they are cruel.  

Professor Usman argues that contingent legislation regarding punishments would not violate the Compact Clause, but I doubt it based on original meaning. That issue disappears if Congress consents to the contingent legislation, but it may be hard to obtain that consent.  Therefore, instead of making the legislation contingent upon action by a number of other states, it might well be better to make it contingent upon a judicial decision that the legislation comports with the Eighth and Fourteenth Amendments.  Or just pass it without any contingency language, and let its enforcement be enjoined by courts until enough states emulate it.