In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of "societal consensus" and contemporary "standards of decency." This shift in focus will tie the Court's Eighth Amendment jurisprudence more firmly to the text and make the Cruel and Unusual Punishments Clause a better source of protection for criminal defendants against the whims of temporarily enflamed public opinion. Finally, it will permit the Court to refocus its attention away from traditional punishments that are already on the way out and toward the much graver danger posed by legislative attempts to enact cruel innovations in punishment.
John F. Stinneford, The Original Meaning of Unusual: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739 (2008), available at http://scholarship.law.ufl.edu/facultypub/68