The story of cruel and unusual

In `The Story of Cruel and Unusual’, Colin Dayan argues that anyone who has followed U.S. Supreme Court decisions regarding the Eighth Amendment prohibition of cruel and unusual punishment would recognize the prisoners’ treatment at Abu Ghraib and Guantanamo as a natural extension of the language of our courts and practices in U.S. prisons. In fact, it was no coincidence that White House legal counsel referred to a series of Supreme Court decisions in the 1980s and 1990s in making its case for torture. Dayan traces the roots of acceptable torture to slave codes of the nineteenth century that deeply embedded the dehumanization of the incarcerated in our legal system. Although the Eighth Amendment was interpreted generously during the prisoners’ rights movement of the late 1960s and 1970s, this period of judicial concern was an anomaly. Over the last thirty years, Supreme Court decisions have once again dismantled Eighth Amendment protections and rendered such words as cruel and inhuman meaningless when applied to conditions of confinement and treatment during detention. Prisoners’ actual pain and suffering have been explained away in a rhetorical haze – with rationalizations, for example, that measure cruelty not by the pain or suffering inflicted, but by the intent of the person who inflictedit.