by Colin Dayan. Cambridge: The MIT Press, 2007. 96pp. Hardback. $14.95/£9.95. ISBN: 9780262042390.

Reviewed by Darren A. Wheeler, Department of Political Science & Public Administration, The University of North Florida. Email: dwheeler [at]


If we were honest with ourselves, it would probably be accurate to say that the images of prisoner abuse in Abu Ghraib are a dim memory. Yes, we recall pictures of prisoners posed in degrading positions and gloating soldiers, but these images and the outrage they generated in the American public have faded somewhat. Yes, mistakes were made. But those mistakes were made by a few bad apples. We have dealt with it, and we have moved on to other things. The scandal has become but one incident among many in the Bush administration’s War on Terror.

While this may accurately describe the public mindset about the Abu Ghraib scandal, Colin Dayan urges us to reflect more deeply on these events. In her new book, THE STORY OF CRUEL AND UNUSUAL, she asserts that these events are not just the actions of a few bad apples but rather are reflective of an American heritage that has a long history of torture and brutality. The events at Abu Ghraib and the Bush administration’s legal parsing about just what constitutes “torture” are only the latest in a country that has systematically declined to use the Eighth Amendment’s prohibition on cruel and unusual punishment to protect the human worth and dignity of all people. This probably is not a story that most Americans will be eager to hear. As such, it is one that we probably should.

Dayan highlights the experiences of three groups – slaves, prisoners, and detainees in the War on Terror – at different points in our history in an attempt to illustrate her arguments. These groups, she contends, have common experiences with regard to the way they have been treated under the law. She reviews the Eighth Amendment jurisprudence associated with each of the three groups and concludes by putting the debate over the Eighth Amendment into a larger international and human rights context in the final chapters.

At the outset, Dayan explores the rise of slave codes and explains how the institutionalization of these bodies of law served to inculcate the belief in much of American society that this was the appropriate way to treat slaves. Even after the emancipation that followed the Civil War, Dayan argues that the black man’s primary relationship to the law was that of potential criminal.

The middle section of the book (Chapters 3-6) is devoted to tracing the development of how the Supreme Court has interpreted the Eighth Amendment over time. Dayan bemoans the fact that there exists no “landmark” case that definitively explains what types of behavior the amendment prohibits, applauds the amendment’s more expansive application during the prisoners’ rights movement of the 1960s [*687] and 1970s, and recoils at the recent Burger and Rehnquist Court interpretations of how the Eighth Amendment should be applied to prisoners.

Dayan focuses on two key issues. First, she is highly critical of the Court’s move toward an Eighth Amendment standard that considers the intent of the prison official in the determination of whether certain conduct constitutes cruel and unusual punishment. By defining cruel and unusual punishment in terms of intent in this fashion, it becomes very difficult for prisoners to show that their constitutional rights have been violated. As a result, the scope of what the courts consider to be cruel and unusual has been narrowed considerably. Second, she is wholly disapproving of judicial attempts to parse, and consequently narrow, the scope of the protections under the Eighth Amendment. One example she cites is Justice Clarence Thomas’ argument that the word “punishment” in the Eighth Amendment should apply only to statutory penalties or judicial sentences, not a “broad range of prison deprivations.” Such efforts, she asserts, only serve to reinforce unduly harsh institutional punishments such as solitary confinement and the deprivations associated with “super-max” incarceration.

Chapters Seven and Eight apply Dayan’s argument to the Bush administration’s War on Terror. THE TORTURE PAPERS, edited by Karen Greenberg and Joshua Dratel, is an excellent collection of government memoranda and documents that illustrate Dayan’s main criticism here. These memoranda and reports detail efforts on the part of Bush administration officials to define the rights of terror suspects in very narrow legal terms so as to restrict their rights under the Constitution, domestic statutes, and international law. Dayan is correct to point out that significant portions of the legal reasoning used in these memoranda to justify such limitations emanate from recent Eighth Amendment jurisprudence, decisions that conveniently also define the rights of prisoner/detainees in very narrow legal terms. Such tactics also had the added benefit of insulating government officials from potential domestic or international legal action as a result of their treatment of terror suspects. This approach has drawn a great deal of domestic and international criticism, including a 2006 report by the United Nations Commission on Human Rights that denounced what it called an attempt by the Bush administration to use “domestic standards to define away its human-rights obligations under international law” (p.73).

Dayan’s book is a Boston Review Book, a series that publishes “accessible, short books that take ideas seriously.” They are “animated by hope, [and] committed to equality.” Indeed, one of the first things that struck me was how small and brief this book is. It can literally fit in the palm of one’s hand, and its ninety-six pages can easily be read in a few hours. I daresay that those who read this book will spend more time discussing the issues within than they needed to actually read it from cover to cover. I consider this a positive thing though, as good academic books should stimulate conversations, offer evidence, and [*688] challenge popular conventions. Dayan’s book accomplishes these goals. In fact, this is the strength of the book. It questions some of our basic assumptions about punishment and can be viewed as an implicit indictment of American culture as it relates more broadly to law and order in our country. The book is probably most appropriate for classes that focus on themes such as human rights, legal ethics, crime and punishment, or law and society. It would also potentially be appropriate for an identity politics class, as one of the underlying themes that runs throughout the book is that the groups of people who are her focus are something “other,” something that need not be treated with respect or human dignity.

Dayan’s primary culprit is the United States Supreme Court, especially the more conservative Burger and Rehnquist Courts of the last several decades. It is their decisions that, in Dayan’s view, have laid the foundation for the unfortunate policies that govern both prisons and detainee matters in the War on Terror. While her critical arguments chronicling the Court’s changing jurisprudence are nicely constructed and cogently argued, there is surely a larger societal dynamic at work here as well. Two points perhaps deserve mention. First, there are those who argue that the Supreme Court is rarely too far away from public opinion. If that is the case here in the context of the Court’s Eighth Amendment jurisprudence, then we should possibly be casting our critical eye toward society at large as well. Second, the Court has not always been at the forefront of movements to enhance civil and human rights. History (even recent history) is replete with examples of this, as blacks, women, and homosexuals can attest. While other political actors may be following the Court’s lead in this area, it does not necessarily have to be so.

The Framers who wrote the Constitution were concerned enough about the government’s power to punish – and the abuse of that power – that they included the Eighth Amendment in the Bill of Rights. While much, if not most, of the discussions about the Eighth Amendment today focus on the death penalty, Dayan’s book reminds us that the amendment was designed to have a broader application. Regardless of where the “blame” lies in the discussion Dayan initiates, her book is sure to be an excellent conversation-starter. It may not be a conversation that makes us comfortable, and it may not be one that many Americans want to have, but it is a conversation whose answers speak volumes about what we as Americans stand for and value in legal, social, and moral terms.

Greenberg, Karen and Joshua Dratel (eds.) THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB. Cambridge: Cambridge University Press, 2005.

© Copyright 2007 by the author, Darren A. Wheeler.