October 29, 2016
"Constitutional Liberty and the Progression of Punishment"
The title of this post is the title of this notable new paper authored by Robert Smith and Zoe Robinson now available via SSRN. Here is the abstract:
The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants. This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.
This Article challenges these assumptions. It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause. The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.
Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment. Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences and the prolonged use of solitary confinement.
October 29, 2016 at 03:51 PM | Permalink
"Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. "
Yes. I don't find this thesis novel as it is a thesis regularly offered by critics of the court to condemn it. I count myself among such critics. So one can guess how I feel about advancing this thesis to support the court: it's ridiculous.
What I find most amusing. however, is that it is precisely this thesis that Mark Tushnet condemned from a leftist point of view in his now infamous "fuck Kennedy" blog post. Using the 8A to insert the court into the cultural wars pleases no one...the left and the right hate it for different reasons and once the court's majority changes the 8A will entirely disappear from the courts jurisprudence.
Posted by: Daniel | Oct 29, 2016 9:30:37 PM
Agreed that this describes what the Court has been doing and also that it is in no way a good thing.
Posted by: Soronel Haetir | Oct 30, 2016 10:48:10 AM
The summary to me sets up a batting practice fastball of sorts by saying this:
"to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse"
There has long been recognition from various quarters that the 8th Amendment did more than that. It is not merely a matter of "contemporary" Supreme Court practice either, especially if that means "two decades."
Justice Powell around thirty-five years ago recognized proportionality should apply in various cases, not only to prevent torture or to halt "isolated" practices. Over fifty years ago, the Supreme Court said that addiction shouldn't be made criminal. And, a broader understanding of what the Eighth Amendment means generally has been present too for quite some time.
Just what this entails & if the recent Supreme Court jurisprudence handles it correctly is another question. No matter what, in practice, the Bill of Rights often is a lesson for non-court actors, the details a matter of executive and legislative action. But, that doesn't change the bottom line about the broader reach of the Eighth Amendment specifically and how it has been in place for quite some time. Any article that clarifies that is hopefully helpful.
Anyway, per the first comment, the courts has always been "inserted into the cultural wars" since they interpret the law, including the Constitution, which in various ways will be something that concerns. The people as a whole do not think the courts should stop doing their job here; they -- as always -- disagree specifically how they should decide. Finally, I see no realistic chance that in a year or ten years the 8A will disappear any more than the 1A or the Commerce Clause. Over the years, it will be understood in somewhat different ways, some factions agreeing, some not. Nothing new there.
Posted by: Joe | Oct 30, 2016 10:56:53 AM
Quickly, "majoritarian retributive excess" is rather open-ended without details. Also, various things here are not only going to be 8A issues. We saw this just the other day when the Supreme Court took a case involving the First Amendment that will affect sex offenders. Finally, the courts are going to be an independent arbitrator that overrides elective branches. The question is how broadly that should be. The Federalist Blog, e.g., supported "judicial engagement" recently.
Posted by: Joe | Oct 30, 2016 11:27:47 AM