Is Punishment Permissible?

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

 John Stinneford

Judith Resnik’s important new book, Impermissible Punishments: How Prison became a Problem for Democracy, sets itself several tasks and largely accomplishes them.  It lays out a history of the prison, focusing on prison brutality and efforts to rein it in.  It argues that prison brutality violates our “democratic commitments to treat each person as an equal.”  Finally, it proposes a solution: The anti-ruination principle – the idea that, whatever punishment the government inflicts on a person, it may not inflict ruin.

This book should be read by every person interested in prison law, and by every Justice of the Supreme Court. The history it sets forth is fascinating, disturbing, and ultimately infuriating.  Despite the efforts of many well-intentioned individuals and groups, incarceration has repeatedly resulted in brutal, dehumanizing treatment of those subjected to it.  Moreover, the idea of an anti-ruination principle to ameliorate this problem is both morally and (potentially) legally compelling. But the book raises some fundamental questions that need answering before the moral can be translated into the legal. I will focus on some of these and will then propose my own (not entirely satisfactory) answer.

1. Are “democratic principles” of equality really the basis for the anti-ruination principle?

Impermissible Punishments seems to treat democracy as a self-justifying source of a comprehensive moral order.  Our commitment to democracy, the argument goes, requires a commitment to equality. Our commitment to equality requires commitment to a whole variety of specific policies – not merely policies against brutal prison conditions, but also policies providing comprehensive social services both inside and outside prison.

This argument seems to treat democracy as the ultimate ground for moral reasoning – but it is not.  We are not committed to equality because of our abiding conviction in democracy; rather, we are committed to democracy because of our conviction in the fundamental dignity and equality of each individual person. Democracy is the result of moral reasoning, not the source of it.

This distinction is important because it means we need to look beyond politics to understand what equality is and how it cashes out in practice. Historically, at least in Europe and America, the idea of equality and human dignity comes from the Judeo-Christian belief that every human being is created in the image and likeness of God. Whatever crime a person has committed, and whatever punishment he deserves, he still possesses the same core dignity and equality as his fellow human beings. Slave-holding Athens, the progenitor of democracy in the West, did not believe in equality in the Judeo-Christian sense.  Although Impermissible Punishments speaks in the language of Athens, its moral commitments seem to derive more directly from Jerusalem.  And appropriately so, for the Judeo-Christian idea of equality is the foundation of American democracy (“We hold these truths to be self-evident…”).  America’s accommodation of slavery at its founding and its tolerance (or even encouragement) of various forms of invidious discrimination ever since shows that we often fail to live up to this commitment.  But if this commitment were not the foundation of our society, we could not criticize prisons for violating the anti-ruination principle - for the principle simply wouldn’t apply.

Just as the anti-ruination principle does not derive from the logic of democracy, it is not inconsistent with other social and political orders.  Indeed, Professor Resnik traces the anti-ruination principle back to Magna Carta, a document from a distinctly hierarchical and non-democratic society.

In short, both equality and the anti-ruination principle must be based on an adequate moral anthropology.  We cannot commit to either principle unless we have some idea of who we are as human beings and why we matter.   

2. What counts as ruination?  Is punishment itself permissible?

Impermissible Punishments does not set forth a positive account of the legitimate purposes of punishment. At one point, the book references the legitimacy of “seeking public acknowledgement that an individual has unlawfully intruded on other people.”  Later, it says that “putting some form of confinement in place marks the radical injuries caused by an individual.”  These descriptions imply that punishment may serve an expressive purpose, but perhaps not a retributive one.  The book briefly mentions deterrence and incapacitation but does not endorse them. 

At the same time, the book argues that the anti-ruination principle requires that “prison life should approximate community life” and should “approximate the normalcy of free movement.”   The book also implies that the government has an affirmative obligation to help prisoners “thrive outside of prison,” although it rejects the idea of rehabilitation because it entails working “on” rather than “with” prisoners.

This discussion raises the question of whether punishment is permissible at all under the proposed anti-ruination principle.   Blackstone, for example, made a distinction between punitive and non-punitive confinement. He wrote that because pretrial prisoners were held “only for safe custody, and not for punishment,” they “ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only.”  American courts also recognize a distinction between punitive and non-punitive confinement.  If the anti-ruination principle requires that prisoners “ought to be used with the utmost humanity; and . . . [not] subjected to other hardships than such as are absolutely requisite for the purpose of confinement only,” is punishment permissible at all, or merely non-punitive confinement?  On the other hand, if the anti-ruination principle does not prohibit all hardships that are not strictly necessary to effectuate confinement, where are we to draw the line?

3. The original meaning of the Cruel and Unusual Punishments Clause

I have argued elsewhere that in the context of the Eighth Amendment, the word “Cruel” originally meant “unjustly harsh” and “unusual” meant “contrary to long usage.”  A punishment is “cruel and unusual” if it is unjustly harsh in light of longstanding prior practice.  There is no requirement that the punishment be motivated by cruel intent; the relevant question is whether the punishment has an unjustly harsh effect.  The baseline for measuring cruelty is neither current societal consensus (as called for by the evolving standards of decency test) nor the societal consensus of 1790 (as called for in Justice Scalia’s Harmelin opinion). Rather, it is the consensus of multiple generations, up to and including today, as revealed through the actions of legislatures, prosecutors, judges and juries.  The tradition may develop over time, as some practices fall out of the tradition and some enter it, but it also maintains a fundamental continuity.

The normative basis for this approach to deciding questions of cruelty derives from the common law, which was traditionally called the law of “long use and custom.”  The basic idea was this:  We may all agree on core principles of justice (for example, the equality principle), but it is often difficult to translate such principles into practice reliably.  What counts as cruelty?  What counts as ruination?  Common law thinkers concluded that the longstanding customs of a free people were the most reliable way to determine what practices were just, reasonable, and enjoyed the consent of the people.  Therefore, if a practice was universally received over a very long period of time, it was legally enforceable and presumptively just.  If a new practice violated a right established through long usage, on the other hand, it was considered unjust because it was “unusual.”  This mode of thinking provided the justification for the American Revolution and underlays many of the provisions of the Bill of Rights.

Under the common law reasoning that underlies the Cruel and Unusual Punishments Clause, a punishment might constitute “ruination” if its effects are significantly harsher than those traditionally given for the same or a similar crime.  Because punishments traditionally involve some infliction of physical or psychological pain, an anti-ruination principle would not necessarily require that life in prison closely approximate life in the community, although it certainly would condemn many of the harsh and degrading prison conditions identified in Impermissible Punishments.

4. The problem of prison.

That being said, prison poses a particular problem for the “original meaning” approach to questions of cruelty.  The normative power of the common law depended on the people having a certain level of awareness of what the government did to those subjected to punishment.  When punishments were inflicted in public, they were also more likely to be regulated by the public.  It is no accident that public pressure to eliminate the death penalty, for example, largely disappeared when executions were moved out of the town square and into hidden rooms inside prisons, and when obviously violent methods like hanging were replaced by scientific-sounding methods like lethal injection.  If people cannot see the suffering, they are not likely to oppose the suffering.  Thus, enforcement of the prohibition of cruel and unusual punishments depends upon the judiciary being willing to take a close look at prison conditions to determine whether they meet our traditional standards.

This leads to the other problem with prisons:  As Impermissible Punishments shows, the history of incarceration is a long history of experimentation.  Most prison practices that might be challenged under the ruination principle do not enjoy “long usage” – that is, they have not been universally received over a very long period of time.  But the experimentation is so pervasive that it may be difficult to establish a traditional baseline against which to judge such practices.  Nonetheless, in at least some instances, comparison is possible.  For example, as I have shown elsewhere, long-term solitary confinement is a repeated, failed experiment that violates the original meaning of the Cruel and Unusual Punishments Clause.  Doubtless, many of the practices identified in Impermissible Punishments do so as well. 

John Stinneford is a Professor of Law and the Edward Rood Eminent Scholar Chair at the University of Florida Levin College of Law.  He may be reached at jstinneford@law.ufl.edu.