Constitutional Law: Cruel and Unusual Punishment
For 50 years, the Supreme Court has been in the thick of the passionate and deep debate over, the meaning of “cruel & unusual” punishment, especially the death penalty, through a series of hotly contested and closely divided Eighth Amendment opinions, drawing on history, philosophy, psychology, and essential pillars of constitutionalism. Recently, the Court has begun to export its Eighth Amendment capital jurisprudence to categorically restrict lesser punishments of life. This course explores Eighth Amendment jurisprudence, principally but not exclusively through the problem of the death penalty. Drawing on the clashing views of the instructors, it explores the justifications and purposes of punishment, from the Bible and the Ancient Greeks to the present. It considers the constitutional relationship of punishment and pain; the doctrine of “evolving standards of decency”; and public opinion as informing the very meaning of the Constitution. Searching for the worst of the worst, it explores aggravating circumstances (felony murder, multiple victims, torture, cop killers, witnesses, lifers, child victims, contract killers); mitigating circumstances (youth, passion, drugs, diminished capacity, rotten background); proportionality; and race and racism. Although this course itself is agnostic, drawing upon a variety of sources, it actively develops and reflects the instructors’ clashing perspectives and common ground—not only to help students better appreciate the dimensions of the problem, but also the better to formulate their own opinions on the meaning of the Eighth Amendment.