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May 27, 2011

Might the Framers have viewed LWOP more like torture than like a death sentence?

The question in the title of this post is prompted by a passage in the majority opinion from the Wisconsin Supreme Court in Wisconsin v. Ninham, 2011 WI 33 (Wisc. May 20, 2011) (available here; blogged here), which rejected a constitutional challenge to the imposition of an LWOP sentence for defendant who committed a horrendous murder as a 14-year-old.  Here is the passage:

At common law, children ages seven and older were subjected to the same arrest, trial, and punishment as adult offenders, In re Gault, 387 U.S. 1, 16 (1967), which means that, theoretically, even the death penalty could have been imposed for a crime committed by a child as young as seven years old, see Stanford v. Kentucky, 492 U.S. 361, 368 (1989), overruled by Roper, 543 U.S. at 574; see also Thompson, 487 U.S. at 828 n.27 (reporting that a 10-yearold child was hanged in Louisiana in 1855 and another in Arkansas in 1885). Notably, once a child turned 14 years old, he or she no longer benefitted from the presumption of incapacity to commit a capital, or any other, felony. Stanford, 492 U.S. at 368 (citing 4 William Blackstone, Commentaries *23- 24); Thompson, 487 U.S. at 864 (Scalia, J., dissenting)

Given the common law understanding that 14-year-olds were not immune from capital punishment, it is clear that Ninham cannot establish that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted.

I highlight this passage because I commonly hear this claim that because the Framing Era accepted the death penalty for young criminals, then the Framers must not have viewed an LWOP term as violating the Eighth Amendment's prohibition on cruel and unusual punishment.  But, I am not sure this logic is air-tight, because (1) it seems likely the Framers expected and wanted the Eighth Amendment to prohibit torture as a form of punishment, and (2) is seems plausible that the Framers could have viewed an LWOP sentence to be more like torture than death as a punishment.

I understand that in modern times it is common (and perhaps even logical) to view an LWOP sentence as a categorically less severe punishment than the death penalty.  But in the Framing era, when lots of folks died young and when nobody was subject to imprisonment for extremely long periods, I am not sure everyone would have embraced this modern view of relative punishment severity.  After all, Patrick Henry famously said "Give me liberty or give me death!" and the discouraging prospect of lives subject to a sovereign's dominion fueled the American Revolution.  Against this backdrop, I do not think it far-fetched to wonder if some (many?) Framing era thinkers would have viewed an LWOP sentence eliminating all personal liberty and any future chance of personal liberty for half a century or longer to be more akin to torture than to a death sentence.

Perhaps someone knows of historical sources for exploring with rigor whether and how the Framers viewed punishments involving extreme liberty deprivations.  But unless and until I see evidence that the Framers embraced the modern perspective that an LWOP sentence is categorically less severe than the death penalty, I will continue to be troubled when courts and advocates assert that LWOP sentences are obviously constitutional for certain persons because the Framers authorized the death penlaty for these persons.

May 27, 2011 at 10:21 AM | Permalink

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"Given the common law understanding that 14-year-olds were not immune from capital punishment, it is clear that Ninham cannot establish that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted."

We can try and hang a 14 year old without moral qualms, but if you try and get a hung 14 year old you're a monster.

Posted by: NickS | May 27, 2011 11:50:10 AM

Looking quickly over the first federal criminal code (1 Stat. 112, Apr. 30, 1790), I don't see any terms over 7 years. But lots of crimes are punishable by death and some by whipping "not exceeding thirty-nine stripes."

Posted by: Kent Scheidegger | May 27, 2011 12:37:59 PM

I can believe that some of the Framers might have considered LWOP worse than death. It is significant that although there were many crimes punishable by death, 7 years was the longest prison sentence. But that doesn’t mean they would have considered LWOP unacceptable for particularly heinous crimes, given that they thought death was acceptable for some fairly minor ones.

Of course, people like to think of the Framers as a group of people with uniform views, which they were not. On a question they are not known even to have debated, it’s likely they had widely divergent views, just as we do today.

Posted by: Marc Shepherd | May 27, 2011 4:01:56 PM

After all, Patrick Henry famously said "Give me liberty or give me death!" and the discouraging prospect of lives subject to a sovereign's dominion fueled the American Revolution.

This is an argument I'd expect to see in the comments section of Above the Law. Lots of kids commit suicide over stupid things, so one could easily argue from that that there are lots of things worse than the death penalty, such as poor grades in school, unrequited love, angry parents, or momentary poverty and that the Eighth Amendment must therefore categorically forbid such things.

Or one could look at things that adults claim to be willing to die for. Lots of people say that they'd die for their country. The Eighth Amendment must forbid deportation and possibly war too. Lots of people say that they'd die for honor. The Eighth Amendment must therefore forbid any action by the state that treats criminal punishment as a form of moral disapproval or any sign of disrespect whatsoever.

Posted by: Paul Revere | May 27, 2011 9:18:29 PM

Any discussion about what the Framers might or might not have thought about the death penalty and about LWOP in todays society is complete rubbish. Those people were not Gods, and would certainly have not expected or appreciated being celebrated as such.
Is it too much to ask that the institutions they created fulfill the ongoing responsibility given them, to develop the law in ways which respond to a vastly different society in a vastly different world? Witches used to be burned at the stake, but even if the Framers had approved that action in the Constitution, would anyone seriously consider that ok now? What we need are great thinkers of today, not reliance on men from history and the decaying paper their words were printed on. When you give birth, you give life. Parents look on proudly, but expect that life to grow and mature to achieve more than the parents ever could. I doubt you understand the Framers at all, if you imagine they thought any differently.

Posted by: peter | May 28, 2011 2:40:22 AM

Farmers are the real hero of any nation. Without farmers we can't get our food. So there should be proper respect and honor for them in every nation.

Posted by: wordpress developers for hire | May 28, 2011 2:59:52 AM

Fair points, Paul Revere, though my central point is NOT that some people think some things are worse than death, but rather that the Framers appear to have been uniquely concerned about human liberty and thus might have been uniquely troubled by a punishment that deprives a person permanently of their liberty for their entire life. And I make this point not so much to prove up an 8th A claim as to try to debunk the all-too-quick assertion that because the Framers accepted death as a punishment for various crimes then they must have also accepted LWOP for these crimes.

More importantly for these purposes is the (undisputed?) reality that the Framers seemed to disapprove of torture as punishment. Nobody can reasonably claim that poor grades or moral disapproval by the state is akin to torture. But I think it is reasonable to assert that permanently depriving a person of their liberty (including, presumably, the liberty to end their own life) is akin to torture. Indeed, when we hear of stories of perverts keeping young girls trapped in a dungeon for an extended period we tend to view that crime as a form of torture. So we return to the question in the title of this post, namely "Might the Framers have viewed LWOP more like torture than like a death sentence?"

Posted by: Doug B. | May 28, 2011 10:14:39 AM

When debating this topic, you have to remember that a 7 year sentence in 1800 likely was a death sentence and a lot closer to "torture" than 50 years in prison today. Prisoners were not even allowed to speak...

To conclude they would see our current prisons as "torture" for any duration is silly.

Posted by: TarlsQtr | May 28, 2011 11:35:02 AM

Peter stated: "Any discussion about what the Framers might or might not have thought about the death penalty and about LWOP in todays society is complete rubbish. Those people were not Gods, and would certainly have not expected or appreciated being celebrated as such."

It is not about seeing them as "God." It is about having a basis or set of principles for our country. Of course we should do everything possible to know their intent regarding issues surrounding the constitution.

You stated: "Is it too much to ask that the institutions they created fulfill the ongoing responsibility given them, to develop the law in ways which respond to a vastly different society in a vastly different world?"

Not as long as they do it according to the principles and intention of the document's signatories.

You stated: "Witches used to be burned at the stake, but even if the Framers had approved that action in the Constitution, would anyone seriously consider that ok now? What we need are great thinkers of today, not reliance on men from history and the decaying paper their words were printed on."

This is nothing but a plea to have no standards or principles. You are essentially urinating on the constitution. Remember that the next time you decry violation of a right the document codifies. A nation built on the shifting "principles" of modern whims is not long for the world.

You stated: "When you give birth, you give life. Parents look on proudly, but expect that life to grow and mature to achieve more than the parents ever could. I doubt you understand the Framers at all, if you imagine they thought any differently."

Of course parents expect their child to grow and mature. However, they want them to do it in agreement with the framework of what you were taught as a child. If you teach your child to respect life, it is not "maturity" if they grow up to detest it. Similarly, throwing out provisions of the FF's document is not maturity either. Rebelling against your parent as a teenager is not "maturity"; it is the exact opposite.

Posted by: TarlsQtr | May 28, 2011 11:56:57 AM

TarlsQtr --

You make an excellent point by noting how odd it is to invoke the Constitution as The Guiding Principle one day, and then, the next, deride it as a product of nativist superstition that we should grow beyond.

Posted by: Bill Otis | May 28, 2011 3:32:28 PM

TarlsQtr -
Constitutional principles evolve and are changed not only by means of formal amendments, but in other ways as well — by the judicial interpretation of the Supreme Court and by actions of the legislative and executive bodies of the state that come to be regarded, over time, as customary and constitutionally legitimate. The best known example of a political system which changes its constitutional principles in those ways is, of course, the United Kingdom. Since the UK has no single constitutional document, it has nothing to be formally amended. But inevitably it is true of the US also.
Having made that point, I agree with Doug that a fundamental idea upon which the Constitution was drawn was that of human liberty. Principles are build upon knowledge and ideas, and to this extent it is pretty safe to say that the intent of the Constitution was to guarantee the status of human liberty and dignity. Neither LWOP nor the death penalty are compatible with that today, given the evolved capability of society to manage criminals and criminality in alternative and more humane ways.

Posted by: peter | May 28, 2011 5:11:11 PM

TarlsQtr - "Rebelling against your parent as a teenager is not "maturity"; it is the exact opposite."
Those with experience of teenagers either or both as parent or teacher, understand and know full well that "rebellion" is natures way of testing the framework of beliefs and values of parents and the wider society. Maturity is not achievable without it. At the end of the process, the beliefs and values of the parent may be accepted or rejected, or more usually, modified. Whatever the outcome, the parent will hope to recognize the legitimacy of it. No generation should be shackled unquestionably and uncritically to the beliefs and values of the past, since the knowledge and ideas on which they were based may have shifted with the evolution of society.

Posted by: peter | May 28, 2011 5:47:33 PM

Remarks on prisons and prison discipline in the United States
(Google eBook)
Front Cover
Dorothea Lynde Dix
0 Reviews
Kite, 1845 - 108 pages

This is a FREE ebook.

Posted by: George | May 28, 2011 11:56:38 PM

George - very interesting. Many thanks.

Posted by: peter | May 29, 2011 9:49:20 AM

Hope you find it helpful, peter. Here is another that may be even more on topic because it pertains to the founding forward, and it too is a free google ebook.

The development of American prisons and prison customs, 1776-1845: with special reference to early institutions in the State of New York (Google eBook)
Front Cover
Orlando Faulkland Lewis, Correctional Association of New York
0 Reviews
Prison Association of New York, 1922 - 350 pages

Posted by: George | May 29, 2011 2:21:44 PM

Peter stated: "Constitutional principles evolve and are changed not only by means of formal amendments, but in other ways as well — by the judicial interpretation of the Supreme Court and by actions of the legislative and executive bodies of the state that come to be regarded, over time, as customary and constitutionally legitimate."

Seriously? Please reread your above statement. Whay have an amendment process at all? And you honestly want to assert that the FFs intended for Congress and the President to have the ability to change the Constitution via law? Then why have the document anyway? To boil it down, you essentially said the following:

"Create a law that is not "customary and constitutionally legitimate" and hold on until it becomes so, "over time." That is absurd.

You stated: "The best known example of a political system which changes its constitutional principles in those ways is, of course, the United Kingdom. Since the UK has no single constitutional document, it has nothing to be formally amended. But inevitably it is true of the US also."

No, it is not "inevitably...true." Hey, I am no lawyer, but isn't the entire idea of a constitutional "evolution" in this manner about 80-90 years old by a Progressive (of course) professor? As far as the UK, I could care less what they do.

You state: "Neither LWOP nor the death penalty are compatible with [the ideas of human dignitiy and liberty] today, given the evolved capability of society to manage criminals and criminality in alternative and more humane ways."

This is the usual fallacy of your ilk. We "manage" criminals so well that society is "safe." You could not be further from the truth. Not only do inmates escape, but the DP/LWOP types are a great danger to COs, other staff, and other inmates, who are all part of "society" as well. To disregard their safety is an injustice.

You stated: "Those with experience of teenagers either or both as parent or teacher, understand and know full well that "rebellion" is natures way of testing the framework of beliefs and values of parents and the wider society. Maturity is not achievable without it."

Being in the maturation process is different than being mature. Is being a rebellious teenager part of maturing? Sure. Are they mature? Not by a long shot.

You stated: "Whatever the outcome, the parent will hope to recognize the legitimacy of it. No generation should be shackled unquestionably and uncritically to the beliefs and values of the past, since the knowledge and ideas on which they were based may have shifted with the evolution of society."

Here is your problem. Rebellious teenagers do not question with a critical eye. They revolt because it is their parents ideas, not because those ideas are inherently wrong. They want "freedom", not knowing that true freedom is not the refusal to have standards but an acceptance that your decisions (good or bad) are your responsibility. Rebellious teenagers want the freedom without the responsibility.

And the founders, in their brilliance, created a tool for exactly the scenario (evolution of society) you mention. It is called the amendment process, not judicial fiat or the passage of a law. Let's call the former the "mature" process for change. Let's call the latter the "immature rebellious teenager" method for change, the process taken by Progressives for the last 100 years.

Posted by: TarlsQtr | May 31, 2011 11:23:52 AM

@ Peter:

"Since the UK has no single constitutional document, it has nothing to be formally amended. But inevitably it is true of the US also."

Though I question the wisdom of responding to someone who is so unwilling to reason past his starting premises: why, again, is it "inevitable" that a written Constitution be interpreted as if it means whatever five of nine judges thinks the wisest and most englightened course, regardless of what the text of the document actually says? As one of the commenters said: why bother having a formal amendment process if the Constitution can simply be amended to conform at the whim of the reader under the guise of interpretation?

In fact, why bother to have a Constitution (or at least an article governing the judiciary) that says more than: "The laws of the United States shall be interpreted, and enforced (or not), as reason, experience, and sound judgment may prescribe"?

Posted by: guest | May 31, 2011 4:51:19 PM

Question for Peter: assume the Constitution were agsin to be interpreted by the Supreme Court as categorically outlawing capital punishment on the basis that it constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Then assume that Congress and the required number of state legislatures cause to be ratified a constitutional amendment providing that "Neither the Eighth Amendment to this Constitution, nor any other provision thereof, shall be construed as prohibiting the imposition or the execution of a sentence of death for murder or treason, whereof the person has been duly convicted in a court of law."

Would you concede that capital punishment, whatever else you might think about it, was Constitutional? Or do you believe that a written Constitution is sufficiently malleable that it can always be interpreted as meaning what you think it ought to mean, regardless of what it says or how it might be amended? (My bet is that you think that a constitutional ruling on an issue like capital punishment is a one-way ratchet that, once it is decided in the way you consider correct, becomes frozen permanently, no matter how one might try to amend it. I'm willing to be corrected, if you disagree. (If you do disagree, please do explain why, rather than just sniff that your views are already well known and require little additional explanation or simply link to an abolitionist website that apparently summarizes everything you think.)

Posted by: guest | May 31, 2011 4:55:51 PM

What do people think of the argument that "LWOP simply has to be regarded as not-categorically-unconstitutional," simply because we've already started to go a bit afield from the Framers' intent and because we know that (1) the death penalty, being explicitly contemplated by the Constitution, can't be categorically-unconstitutional, and (2) if we know that capital punishment is an option but LWOP, even for very violent offenders, isn't, the outcome is going to be many more death sentences?

What do people think of the argument that a defendant who, either directly or through counsel, urges the jury to vote against the death penalty **because** the alternative will be lifetime imprisonment without parole forfeits the right to contend on appeal that the lifetime prison sentence (which might well have been a death sentence) is unconstitutionally cruel and unusual and must be effectively commuted to life with parole, a sentence that there's no reason to think the jury would have favored if a death sentence and life with parole were the only possibilities?

Posted by: guest | May 31, 2011 5:02:29 PM

g all personal liberty and any future chance of personal liberty for half a century or longer to be more akin to torture than to a death sentence.

Posted by: TISA Snapbacks | Jun 20, 2012 9:52:04 AM

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