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And Unusual: Examining the Forgotten Prong of the Eighth Amendment

25 Pages Posted: 8 Mar 2007  

Joshua Lane Shapiro

Emory University School of Law


This essay examines the original understanding of the Cruel and Unusual Punishments Clause with a specific focus on the meaning of unusual. It is my contention in this essay that unusual must be explored in a separate and independent inquiry from cruel.

In addition to discussing the original understanding of unusual - what it meant to the Framers and, more importantly, what it meant to We the People - this essay explores the correct level of generality we must use to decipher unusual. Arriving at the determination that the appropriate level of generality is the number of states that either have or do not have death penalty provisions, this essay concludes that the appropriate benchmark for determining whether a punishment is unusual is when three-fourths of the states forbid its imposition. Finally, this essay applies this three-fourths formula to the factual settings before the United States Supreme Court in Atkins v. Virginia (death penalty for the mentally retarded) and Roper v. Simmons (death penalty for juveniles) and asks whether we would be comfortable or confident with the results.

Keywords: death penalty, capital punishment, cruel and unusual, Eighth Amendment, unusual, Atkins, Roper, originalism, We the People, federalism

JEL Classification: K14, K19

Suggested Citation

Shapiro, Joshua Lane, And Unusual: Examining the Forgotten Prong of the Eighth Amendment. Emory Public Law Research Paper No. 07-8; University of Memphis Law Review, Vol. 38, 2008. Available at SSRN:

Joshua Lane Shapiro (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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