Bendesky on "The Key-Stone to the Arch": Unlocking Section 13's Original Meaning @Harvard_Law @PennJCL

Kevin Bendesky, Harvard Law School, is publishing ‘The Key-Stone to the Arch’: Unlocking Section 13’s Original Meaning in volume 26 of the University of Pennsylvania Journal of Constitutional Law (2023). Here is the abstract.

The Pennsylvania Supreme Court holds that Section 13 of the State’s Constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only “cruel and unusual punishments.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This is because Pennsylvania history, says the court, does not provide evidence that the Commonwealth’s prohibition differs from the federal one. Without that historical basis, the court believes it is bound by federal precedent. This is mistaken. History reveals that Pennsylvanians had a distinct original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited any severity contemporary science deemed unnecessary for those ends. The historical record should provide, not prevent, a distinctly Pennsylvanian definition of cruelty. This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Pennsylvania Supreme Court interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments. Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history provides.

Download the article from SSRN at the link.