Punishing words

John Stinnedford

BY TROY HILLIER (2L)

What is the phrase that best sums up Levin College of Law Assistant Professor John Stinneford’s scholarship?

“Cruel and unusual.”

John Stinneford

John Stinneford

Stinneford’s scholarship has centered largely on the cruel and unusual punishments clause of the Eighth Amendment, and he has focused most recently on the original meaning of the word “unusual.”

Stinneford is a recent addition to the college, having joined the faculty during the fall 2009 semester. After graduating from Harvard Law School, he gained first-hand experience with criminal justice system as a private defense attorney and as an assistant U.S. attorney. It is partially these experiences that led to his current academic interests.

“One thing that I became acutely aware of when I was in practice,” Stinneford said, “was how very harsh the punishment system is in this country now.”

Having such an upfront view of the effects of the criminal justice system sometimes made his job as a prosecutor difficult.

“Criminal practice, as a defense lawyer and a prosecutor, showed me the human toll that the criminal justice system takes on people,” he said.

Stinneford said punishments tend to become more cruel when public opinion becomes “temporarily enflamed” against a certain group. In the 1908s, that group was drug offenders, he said, and now it is sex offenders.

“When you have an inflammation of public opinion,” he said, “the legislatures tend to react by enacting new punishments that are harsher than they were before as a way of appeasing the public.”

Stinneford views chemical castration of sex offenders as one such punishment, which has been adopted in several states — including Florida — despite the fact that castration as a punishment was eliminated from the English tradition in the 13th century and has never previously been a part of the American criminal justice tradition.

Why aren’t such punishments struck down as being cruel and unusual? As Stinneford points out, the current analytical framework for deciding these cases can make constitutional challenges an uphill battle. In 1958, the U.S. Supreme Court decided Trop v. Dulles, laying out the “evolving standards of decency” test, which ties the meaning of the cruel and unusual punishments clase to current majority opinion. Under this test, it is very difficult to challenge punishment as excessively cruel, so long as it enjoys strong public support.

Harsher penalties have also been meted out to juvenile offenders during recent years, and Stinneford’s work was recently cited in an amicus brief submitted to the U.S. Supreme Court by New York University School of Law’s Center on the Administration of Criminal Justice in the case of Graham v. Florida. Graham was 17 when he commited armed robbery while on probation, and was sentenced to life improsonment. and was sentenced to life imprisonment. The brief argued that life imprisonment without parole was cruel and unusual punishment when applied to juvenile offenders who commit non-homicide crimes.

Stinneford believes society should be concerned about the punishments that sexual offenders and other violent criminals receive, despite the repugnance of their crimes.

“The whole point of the cruel and unusual punishments clause is that even offenders who deserve serious punishment also deserve to be treated with human dignity,” he said. “So it’s never the case that we can say that someone is ‘scum of the earth’ because they’ve done something, and that there’s no limit to what we can do to them.”