The Story of Cruel and Unusual
128 pp., 5 x 7 in,
- Published: March 16, 2007
- Published: March 16, 2007
A searing indictment of the American penal system that finds the roots of the recent prisoner abuse at Abu Ghraib and Guantánamo in the steady dismantling of the Eighth Amendment's prohibition of "cruel and unusual" punishment.
The revelations of prisoner abuse and torture at Abu Ghraib and more recently at Guantánamo were shocking to most Americans. And those who condemned the treatment of prisoners abroad have focused on U.S. military procedures and abuses of executive powers in the war on terror, or, more specifically, on the now-famous White House legal counsel memos on the acceptable limits of torture. But in The Story of Cruel and Unusual, Colin Dayan argues that anyone who has followed U.S. Supreme Court decisions regarding the Eighth Amendment prohibition of "cruel and unusual" punishment would recognize the prisoners' treatment at Abu Ghraib and Guantánamo as a natural extension of the language of our courts and practices in U.S. prisons. In fact, it was no coincidence that White House legal counsel referred to a series of Supreme Court decisions in the 1980s and 1990s in making its case for torture.Dayan traces the roots of "acceptable" torture to slave codes of the nineteenth century that deeply embedded the dehumanization of the incarcerated in our legal system. Although the Eighth Amendment was interpreted generously during the prisoners' rights movement of the late 1960s and 1970s, this period of judicial concern was an anomaly. Over the last thirty years, Supreme Court decisions have once again dismantled Eighth Amendment protections and rendered such words as "cruel" and "inhuman" meaningless when applied to conditions of confinement and treatment during detention. Prisoners' actual pain and suffering have been explained away in a rhetorical haze—with rationalizations, for example, that measure cruelty not by the pain or suffering inflicted, but by the intent of the person who inflicted it. The Story of Cruel and Unusual is a stunningly original work of legal scholarship, and a searing indictment of the U.S. penal system.
[Dayan] builds her argument around one basic principle: that in a society of laws, we frame cruelty in terms of intent. Thus, she writes, we always have a loophole; it's not what we do but what we mean.... The argument may be somewhat overstated, but with its implicit sense that cruel and unusual punishment is an ever-shifting standard, it can't help but raise compelling questions, forcing us to reconsider our founding documents and what they say about us.
Los Angeles Times Book Review
The two meanings of 'torture' - to twist words and to inflict suffering - are shown to be allied in this indispensable historical and juridical study of the Eighth Amendment phrase 'cruel and unusual punishment.' Originating in the English Bill of Rights (1689), the phrase was perverted in the American slave codes to establish structures of racism. The perversion has been developed in our own time by twisting attention from the pain of the victim to the intentions of the tormentors.
Peter Linebaugh, author of The London Hanged: Crime and Civil Society in the Eighteenth Century