Since at least the 1970′s, the Supreme Court has been badly splintered on how to interpret and apply the Cruel and Unusual Punishments Clause of the Eighth Amendment. Under one perspective, particularly associated with Justice Scalia, the Clause only bans specific penal practices that were regarded as barbaric even in the late eighteenth century. Scalia thus rejects the claim that the Eighth Amendment prohibits disproportionately long prison terms. Although Scalia’s position has not attracted majorities on the Court, the forcefulness with which he has advanced his originalist arguments has perhaps contributed to the Court’s reluctance to overturn some pretty clearly excessive sentences in cases like Harmelin v. Michigan and Ewing v. California. (For more on the Court’s Eighth Amendment jurisprudence, see my article here.)
Now, however, John Stinneford takes on Scalia’s interpretation of the original meaning of “cruel and unusual punishment” in a new paper entitled ”Rethinking Proportionality Under the Cruel and Unusual Punishments Clause.” Reviewing the history of the phrase back through its English antecedents, Stinneford argues that its established meaning at the time of Eighth Amendment’s framing included a proportionality principle.
Stinneford’s analysis, no less than Scalia’s, is lawyers’ history, which always leaves me a little cold. What we get is mostly in the nature of a long list of short quotations from judicial opinions and other historical sources. Without a closer and more contextualized reading of the sources, I’m reluctant to embrace any account of social meaning.
Still, as lawyers’ history goes, Stinneford’s work strikes me as reasonably thorough and persuasive. He certainly has the better of the argument with Scalia.
Does it matter? By my lights, what “cruel and unusual punishment” meant two centuries ago should carry little weight in deciding whether the Clause bars disproportionate punishment today. The proportionality requirement has been consistently endorsed by majorities on the Court and is now an established feature of our constitutional law. In practice, it has not resulted in much limitation on what legislatures and sentencing judges can do. (In a back-of-the envelope calculation, Stinneford estimates that “[l]ess than one-thousandth of one percent of all felony offenders are better off than they would have been had the Supreme Court never engaged in proportionality review” (3).) No sizable social movement has arisen in opposition to the proportionality requirement, and it is widely embraced across the global community as a fundamental human right. Moreover, if we did not locate the proportionality requirement in the Eighth Amendment, we would have to have something very much like it in the Equal Protection and perhaps Due Process Clauses. Scalia’s fight seems pointless to me.
The more difficult and important question is not whether we should have a proportionality requirement, but how we should give it content. (Indeed, in my view, the most persuasive argument against the proportionality requirement is that the Court has now struggled for decades to give it content and has yet to produce a satisfactory formulation.)
Here, Stinneford’s work strikes me as less successful. He argues that, by its original meaning, the Cruel and Unusual Punishments Clause should be understood as a bar on cruel innovations, including dramatic increases in the severity of prison terms. Perhaps, as he argues, penal innovation was presumptively unjust in the eighteenth-century mindset, but that skepticism of innovation strikes me as quite out of step with two centuries of cultural development in this country. Our culture is not one that resists innovation, but rushes to embrace it — to a fault, I might suggest.
In any event, even if we refocus the Eighth Amendment analysis on innovation, Stinneford’s test still begs the question of what counts as cruel. Proportionality plays a key role here, but what does proportionality entail? Returning to his historical sources, Stinneford argues that proportionality should be assessed in light of retributive purposes.
Were the Framers retributivists? Stinneford says yes, although his support for the proposition seems exceptionally thin (brief quotations from just three cases decided between 1799 and 1892). As Stinneford himself acknowledges, Cesare Beccaria, the most influential penal theorist of the late eighteenth century, was more utilitarian than retributivist. Moreover, although American courts in the late eighteenth century may not have spoken the language of contemporary deterrence, incapacitation, or rehabilitation theory, that hardly proves they endorsed anything that modern punishment theorists would recognize as retributive.
Although I tend to agree that retributive theory offers the best framework for assessing proportionality — see, e.g., the work of Paul Robinson on the determination of desert — I’m not convinced that originalism gets us there.