Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment

Abstract

In this article, I will analyze the origins of the language of the Eighth Amendment and the process that led to its inclusion by the Framers in the Bill of Rights. I will also discuss the meaning of the Eighth Amendment language prohibiting cruel and unusual punishment. Through this analysis and discussion, I will demonstrate that the proscription against cruel and unusual punishment was intended to protect against coercive interrogation. Finally, I will discuss the ramifications of this conclusion for those detained for the purposes of information gathering by the government and those interrogated but against whom criminal charges are not brought.