THE EIGHTH AMENDMENT'S MILIEU: PENAL REFORM IN THE LATE EIGHTEENTH CENTURY.

Item request has been placed! ×
Item request cannot be made. ×
  Processing Request
  • Additional Information
    • Subject Terms:
    • Abstract:
      Conflicting interpretations of the history of the "cruel and unusual punishments" clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment's application. These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment's adoption. These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century. This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms. This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic. It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe. Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment's meaning and its import at the time it was drafted. This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date. [ABSTRACT FROM AUTHOR]
    • Abstract:
      Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
    • Author Affiliations:
      1Law Clerk to the Honorable Juan R. Torruella, United States Circuit Court for the First Circuit
    • ISSN:
      0091-4169
    • Accession Number:
      122444845
  • Citations
    • ABNT:
      BRAATZ, E. E. The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century. Journal of Criminal Law & Criminology, [s. l.], v. 106, n. 3, p. 405–472, 2016. Disponível em: http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=122444845&custid=s6224580. Acesso em: 22 jan. 2020.
    • AMA:
      BRAATZ EE. The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century. Journal of Criminal Law & Criminology. 2016;106(3):405-472. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=122444845&custid=s6224580. Accessed January 22, 2020.
    • APA:
      BRAATZ, E. E. (2016). The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century. Journal of Criminal Law & Criminology, 106(3), 405–472. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=122444845&custid=s6224580
    • Chicago/Turabian: Author-Date:
      BRAATZ, ERIN E. 2016. “The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century.” Journal of Criminal Law & Criminology 106 (3): 405–72. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=122444845&custid=s6224580.
    • Harvard:
      BRAATZ, E. E. (2016) ‘The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century’, Journal of Criminal Law & Criminology, 106(3), pp. 405–472. Available at: http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=122444845&custid=s6224580 (Accessed: 22 January 2020).
    • Harvard: Australian:
      BRAATZ, EE 2016, ‘The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century’, Journal of Criminal Law & Criminology, vol. 106, no. 3, pp. 405–472, viewed 22 January 2020, .
    • MLA:
      BRAATZ, ERIN E. “The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century.” Journal of Criminal Law & Criminology, vol. 106, no. 3, Summer 2016, pp. 405–472. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=122444845&custid=s6224580.
    • Chicago/Turabian: Humanities:
      BRAATZ, ERIN E. “The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century.” Journal of Criminal Law & Criminology 106, no. 3 (Summer 2016): 405–72. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=122444845&custid=s6224580.
    • Vancouver/ICMJE:
      BRAATZ EE. The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century. Journal of Criminal Law & Criminology [Internet]. 2016 Summer [cited 2020 Jan 22];106(3):405–72. Available from: http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=a9h&AN=122444845&custid=s6224580