Cruel and Unusual Punishments as Legislative Gross Negligence
Click here to read: “Cruel and Unusual Punishments as Legislative Gross Negligence”.
Private and public law recognize that people can be held accountable for their grossly negligent conduct. Gross negligence is a form of culpability (or moral blameworthiness) that acknowledges how a person failed to take the most basic precautions and callously disregarded others’ most basic interests.
Skim through legal decisions and you will find various adjectives that describe the level of indifference or recklessness that underpins gross negligence: cruel, callous, cavalier, reckless, and more.
We find gross negligence in both criminal law and tort law. It exemplifies a marked and substantial departure from the reasonable person in the same circumstances.
In a recent article entitled “Cruel and Unusual Punishments as Legislative Gross Negligence” punished in Criminal Law and Philosophy, I argue that lawmakers can also engage in grossly negligent conduct. Drawing on fiduciary theories of legal authority, I contend that cruel and usual punishments constitute a form of legislative gross negligence. Here is the abstract:
Many jurisdictions confer a constitutional right to be protected against cruel and unusual punishments. This right is typically justified by three considerations. First, cruel and unusual punishments undermine human dignity. Second, such punish- ments shock the community’s conscience or violate evolving standards of decency. Third, grossly excessive sanctions violate proportionality constraints.
This article advances an additional justification for the prohibition against cruel and unusual punishments. Drawing on Kantian theories of public authority, republicanism, and fiduciary theories of legal authority, it argues that cruel and unusual punishments are objectionable because they constitute a form of legislative gross negligence that the Constitution prohibits. The core arguments of this article demonstrate why lawmakers have a fiduciary duty to ensure that the punishments they enact do not inflict needless harm and suffering—an obligation that requires them to enact sanc- tions that respect proportionality constraints. Lawmakers engage in legislative gross negligence when they enact cruel and unusual sanctions that are either indifferent to individuals’ interests to avoid unnecessary harm or depart significantly from the applicable standard of care.
Ultimately, the right to be protected against cruel and unusual sanctions safeguards individuals against legislative gross negligence that results in grossly excessive punishments.
All views expressed are my own. They do not represent — and are not endorsed by — any academic institution or research center.
