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 punishments 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 sanctions 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.