Jacob Leon


The Supreme Court, in Bucklew v. Precythe, provided an originalist interpretation of the term “unusual” in the Eighth Amendment of the United States Constitution. This originalist interpretation asserted that the word “unusual” proscribes punishments that have “long fallen out of use.” To support its interpretation, the Supreme Court cited John Stinneford’s well-known law review article The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation. This Article, as Bucklew did, accepts Stinneford’s interpretation of the word “unusual” as correct. Under Stinneford’s interpretation, the term “unusual” is a legal term of art derived from eighteenth-century common law that means “contrary to long usage.” Simply put, Stinneford defines “unusual” to proscribe punishments that are “new” against the backdrop of eighteenth-century common law.

Under Stinneford’s interpretation of “unusual,” decade-long delays on death row are “contrary to long usage” and consequently “unusual” under the Eighth Amendment. This Article proves that decade-long delays on death row are “contrary to long usage” in two steps. First, it demonstrates that our Constitution’s framers adopted the principle of immediate punishment articulated by Cesare Beccaria in the Enlightenment Era. Second, with data gathered from approximately 150 execution delays in eight states during 1770-1791, this Article shows that no sentence-to-execution delay exceeding three months enjoyed “long usage” in the eighteenth century-common law.