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.
Thanks for noting my draft article, Michael! I’d like to make two quick points of clarification.
First, my argument that the Cruel and Unusual Punishments Clause forbids “cruel innovation” does not depend on a free-floating argument about the subjective intent of the framers. Rather, it focuses on the fact that the original public meaning of the word “unusual” in the Cruel and Unusual Punishments Clause was “contrary to long usage,” which is a synonym for “innovation.” This fact is, I think, fairly clearly established in my earlier article on the “original meaning of unusual” (located here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015344). So unless we are willing either to ignore half of the phrase “cruel and unusual” or give the word “unusual” an entirely new meaning (such as “rare”), we should focus on whether punishments are cruel innovations.
I also happen to think that this approach makes more sense than either of the alternatives, precisely because — as you say above — as a society we tend to rush to embrace innovations, often to a fault. In the realm of punishment, this tendency often leads to cruelty.
Regarding retributivism and original meaning, your comments are well taken. I’m revising the draft and beefing up this section significantly, and I hope your readers will take a look at it when it’s published in the Virginia Law Review this June. It is true that the notions of retributivism that governed at the time the Eighth Amendment was adopted were far less theoretically sophisticated than those we see today, but so were utilitarian theories. I plan to show that the Cruel and Unusual Punishments Clause falls on the retributive side of the line. This won’t answer every modern proportionality question, but it will significantly focus the Court’s analysis.
Thank you, John, for visiting my blog and offering such a thoughtful response. On the innovation question, I don’t doubt that your reading of the original public meaning of “unusual” is correct. The point you are making is a very important one for anyone engaged in a formalist analysis of the CUPC. What I’m not so sure of is whether formalist analysis is the best way to go in this setting, where there is now a well established body of jurisprudence that embraces a non-formalist, evolutionary approach to interpretation. To be sure, as you have very capably demonstrated, the evolutionary approach has not exactly resulted in the most coherent body of jurisprudence. So, maybe it does make sense to go back to square one and get on a more formalist track. Maybe we need an Apprendi- or Crawford-style reboot in the Eighth Amendment context. But there are certainly a lot of transaction costs in going that route, and I’m not sure if we will end up any place better than we are now. I’m looking forward to reading your more complete elaboration of the retributivism point, which may leave me with more confidence that your approach will take us to a good place. One way or another, I’m grateful for your work in advancing the Eighth Amendment debate in new and provocative ways.