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October 26, 2007

Why so much fear about a robust Eighth Amendment doctrine?

I am surprised and disappointed to see a few academic bloggers I respect expressing reservations about the Georgia Supreme Court's application of the cruel and unusual punishments clause in the Wilson case.  Specifically, Eugene Volokh has this to say:

I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment.

And Laura Appleman adds this:

If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine?  I'm not arguing that Genarlow Wilson deserved to remain in jail -- his 10 year sentence was ridiculous on its face.  But I'm a little nervous about using the 8th Amendment as a tool to free him.  Wilson's case was arguably a problem of proportionality -- isn't using the 8th Amendment to free him like using a battering ram when a kick or two would do?

I just do not get these sorts of concerns.  Let's start with Eugene's points.  Why does he or others think the Eighth Amendment's prohibition on "cruel and unusual punishments" is any more "mushy" or less subject to sound judicial line-drawing than the Fourth Amendment's prohibition on "unreasonable searches and seizures" or the Fifth Amendments requirements of "due process" and "just compensation."  Of course, one might contend that all these vague standards defy effective constitutional line-drawing.  But, if one excepts the appropriateness of courts drawing hard lines when interpreting other vague Amendments, I do not quite understand why the protections of the Eighth Amendment should evaporate once a person gets sentenced to a term of confinement. 

Laura raises related issues that also make me scratch my head: for Genarlow Wilson, another 7 years in prison seems pretty dire.  I know everyone thinks "death is different," but many defendants on death row bringing Eighth Amendment claims are going to die in prison as old men before appeals are exhausted.  But, for Genarlow Wilson, this case essentially concerned whether he was going to get to be a free man in his 20s (which is a probably a decade that few adults would want to have spent locked up in a prison).  Though others may disagree, but I am much more eager to use a battering ram for the likes of Genarlow Wilson than for the likes of Ted Bundy.

Finally, Eugene suggests a focus on the text of the Eighth Amendment (which few really do).  As the Wilson majority adroitly notes, statistics suggest that 7.5 million teenagers are involed each year in the specific offense behavior that resulted in 10 years in prison.  Can anyone argue (without using legalese) that it is not "cruel and unusual punishment" for Genarlow Wilson to be only one of this massive population forced to serve 10 years locked in a small cage for this behavior?

October 26, 2007 at 04:27 PM | Permalink


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Doug, it's the old "give an inch, lose a mile" argument. I haven't yet found a commentator who thinks Wilson belongs in prison. The quibble is over the method used to reach that conclusion, and the fear that the same reasoning will be employed in cases where the perpetrator is much less deserving of justice than Wilson was.

Yes, it's true that courts regularly employ Fourth and Fifth Amendment balancing tests. But the conservative commentators who oppose the Wilson decision would oppose those balancing tests too.

Posted by: Marc Shepherd | Oct 26, 2007 5:24:44 PM

At the end of his post, Professor Volokh wrote, "I should say that I at first thought there was no Cruel and Unusual Punishment Clause issue here, but the Georgia Supreme Court’s analysis has persuaded me."

Posted by: Victoria | Oct 26, 2007 5:24:52 PM

Doug, to briefly reply--I think lots of defendants, including those teenagers locked up for sex crimes, could argue that it is inhumane and cruel to lock them up in boxes for years at a time. In fact, most of the people we lock up are young men for relatively minor offenses. But I'm wary of using the 8th Amendment to free them from this kind of incarceration--there's got to be a better way than constantly relying on the Constitution to get us out of this major societal issue.

More here:

Posted by: Laura | Oct 26, 2007 5:41:47 PM

[T]here's got to be a better way than constantly relying on the Constitution to get us out of this major societal issue.

Hey, what's wrong with me? I'm meant to secure your rights and, after all, I'm supposed to be the blueprint for how our country runs. I know our president (and esp. our VP) often tend to ignore me, but please don't you too start in on ignoring me!

Posted by: The Constitution | Oct 26, 2007 5:48:30 PM

If we cannot find a single soul who can persuasively defend the length of this sentence, shouldn't that properly inform (or, isn't it at least indicative of) the proper constitutional outcome? The document is, after all, supposed to represent what we think it takes to establish a just society.

Posted by: | Oct 26, 2007 5:52:40 PM

I agree with you, Doug, that it seems odd to protest the use of the Eighth Amendment to limit prison sentences in particular. The cruel and unusual punishments clause isn't any less "mushy" for prison sentences than it is for death sentences, and yet courts have developed an extensive and complex Eighth Amendment doctrine for death. Of course, extra-constitutional sources of reform are also important (and some, like legislative reform, can have much broader and more immediate impact than judicial applications of the Eighth Amendment). Maybe Laura is concerned that focusing on the Eighth Amendment will replace or detract from these other kinds of reform.

Posted by: Alice Ristroph | Oct 26, 2007 6:00:56 PM

Alice, that is part of my concern--that over-reliance on the 8th Amendment will stifle needed extra-constitutional reform. From my days as a NY p.d. I know that the 8th Amendment argument hardly ever worked, and yet there are plenty of defendants like Genarlow Wilson out there who haven't gotten the press or the outcry.

Wilson's case cries out to the public because we see his offense as negligible for the heavy sentence he received. But what about all the low-level drug offenders, often addicts themselves, receiving just as long a sentence for the sale of a 10 dollar ball of crack? Can we really apply the 8th Amendment doctrine to all of these defendants? Surely not. This is why we need systemic reform of our prisons, something that will not come about from consistently applying the 8th Amendment--courts generally are not that sympathetic to the cruel and unusual punishment claim.

Posted by: Laura | Oct 26, 2007 6:19:44 PM

The big concern about 8th Amendment jurisprudence is the separation of powers. But, the Bill of Rights put that conflict firmly in place in 1791.

Still, separation of powers jurisprudence could inform 8th Amendment jurisprudence, as it does in the Wilson case, where the majority notes that "our legislature compared the gravity of the offense of teenagers who engage in oral sex but are within four years of age of each other and determined that a minimum ten-year sentence is grossly disproportionate for that crime."

While this treads close to retroactivity, it is fair to conclude, I think, that the legislature was not contemplating a case like Wilson's when the enacted a statute with a 10 year minimum sentence with no possibility of parole. Indeed, I think it is fair to say that most of the plausible 8th Amendment cases involve situations where poor statutory drafting gives rise to consequences not contemplated by the legislators who passed the law. When Courts strike down unintended harsh consequences of ill drafted laws, they are supporting the separation of powers, not undermining it, by carrying out the true legislative intent, even if the legislative history needed to clearly document that intent may be fuzzy or non-existent.

In the same vein, I think it is fair to guess that while the Arizona legislature contemplated that child pornography would carry a stiff ten year sentence, that it did not recognize the real implications of what it was doing when it provided that each image in a single incident would give rise to a separate offense which must be sentenced consecutively.

And, similarly, while California's legislature clearly did intend for three ordinary felonies to give rise to life imprisonment under its three strikes and you're out legislation (a harsh result in and of itself), it is fair to infer that it didn't realize how that would interact with a separate habitual offender provision that turned petty theft cases normally constituting misdemeanors into felonies for repeat offenders. Yet, it is those life in prison for petty theft cases that now improperly, in my humble opinion, set the outer boundaries for constitutional punishment under the 8th Amendment.

An unintended consequences doctrine doesn't solve all the 8th Amendment cases. But, it resolves a good share of the worst ones in a sensible way.

Posted by: ohwilleke | Oct 26, 2007 6:35:46 PM

It looks like the comment at 5:48:30 PM provides conclusive proof that we do have a living Constituion.

Seriously, though, I appreciate and agree with Laura's concern about advocate unduly relying on the Constitution to solve all problems. But this is not a reason for courts not to give content to sound Constitutional claims (or to be fearful when they do). The Constitution will only harmfully occupy the field if lawyers let it, and they shouldn't. Indeed, I think all the Justices would agree on this point.

Posted by: Doug B. | Oct 26, 2007 7:19:38 PM

"...and yet courts have developed an extensive and complex Eighth Amendment doctrine for death."

And that has been an unmitigated disaster, accomplishing little if any good and making the death penalty ineffective in much of the country, far more expensive than it needs to be, and arbitrary in its nonexecution, as people get off death row merely because the rules have changed between trial and review, not because they didn't fully deserve their original sentences.

Of all the arguments that might be made for applying the Eighth Amendment here, analogy to the death penalty mess is the least convincing.

Posted by: Kent Scheidegger | Oct 26, 2007 7:31:11 PM

Legislators across the country have learned about the votes that being "tough on crime" can get them. Also, over the last twenty years we have seen legislatures adopting elaborate sentencing systems which have drastically reduced the power of judges and drastically increased the power of prosecutors to control the level of sentences. Above all else, the primary function of the Constitution is to serve as a buffer between the all powerful majority and the individual citizen. So, I believe an increased role of the Eighth Amendment is appropriate given the unprecedented excesses of the legislatures and the prosecutors.

Likewise, I believe Justice Kennedy's three-step framework set forth in his concurring opinion in Harmelin v Michigan, and later relied on in Ewing v California, provides a workable framework to keep the concept of "gross disproportionality" from running amok. One, is there an inference of gross disproportionality. Two, if so, what sentences does the same state impose for different crimes? Three, what do different states impose for the same crime?

What has happened over the last decade is that so many sentences have reached, or exceeded , the life expectancy of normal humans, that we have lost all sense of proportionality.

Posted by: bruce cunningham | Oct 26, 2007 8:20:44 PM

Doug, I don't do any federal criminal work, so excuse my ignorance, but how is a "robust Eighth Amendment" review different in any significant way from the post Booker "reasonableness review" that you are writing about all the time? Seems to me that federal appellate courts are constantly looking at the offense, the offender and the sentence and deciding if the sentence is too severe or too lenient. Am I missing something?

Posted by: bruce cunningham | Oct 26, 2007 10:55:58 PM

Bruce, that's a very interesting observation. I think the fear of a robust Eighth Amendment derives from the combined facts (1) that it is a squishy standard (also true with reasonableness review), which would be used (2) in a way legislatures can't control and (3) to invalidate state judgments through federal courts. Points two and three don't apply to Booker reasonableness review, which is a creature of federal statute that Congress can always change, and which run-of-the-mill state prisoners can't use to attack their sentences through federal habeas.

Posted by: anonymouse | Oct 27, 2007 12:02:52 AM

We would have nothing to fear about a robust use of the Eighth Amendment if judges could be trusted to be circumspect. Despite the doctrinal problems, the world isn't going to come to an end if judges from time to time exercise pardon power disguised as 8th Amendment jurisprudence. The problem is keeping the genie in the bottle.

I have mixed feelings about Wilson's freedom. I think he has served enough time, and at the end of the day it's hard to get worked up about a result that you fundamentally agree with. Without knowing a ton about the Georgia Supreme Court, I am guessing that this case isn't going to create a ton of problems.

Kent's post is spot on.

Posted by: federalist | Oct 27, 2007 6:07:12 AM

I think that the kid, and his consensual partner in sex crime, should have "Taken the 9th"--i.e., exercised their Ninth Amendment right of privacy and refused to testify. State statutes compelling testimony only reference the Fifth Amendment. The Ninth is fundamental and clearly assertable. If the kid and girlfriend had refused to testify, then no case.

Someone above referred to the 8th Amendment as a "tool". Any time someone uses the word "tool" in regard to justice I open my eyes wide. The Eighth Amendment is not a tool. A taser is a tool. The Bill of Rights are assertions of rights, commands, prohibitions-- restrictions of powers otherwise defined.

Is it cruel to put some kid in jail for having sex with another teenager? Yes. Is it unusual? Yes. We could do an up or down vote in any high school assembly in America.

Someone above (I think it was an anonymouse) commented about the ability of legislatures to control application of the 8th Amendment. It is not the legislature's function to control the judiciary's application of the Constitution. Tripartite government is intended to keep legislatures from judging, judges from legislating, and executives from doing either.

Posted by: M.P. Bastian | Oct 27, 2007 6:58:22 AM

The gist of this discussion seems to be that, while Genarlow Wilson's sentence was obviously wrong, maybe the Eighth Amendment wasn't the appropriate way to demonstrate that. I have been chastised previously in this blog for saying things were "obviously wrong" and told that, as a lowly non-lawyer, I just don't understand. I have been told that you folks deal with the law as it stands, and that if the law is unjust then it's up to legislators to change it. Well, legislators changed the law in Georgia, and it didn't help Mr. Wilson.

So my question is, if the Eighth Amendment isn't the proper basis for arguing that the sentence was unjust in this case, what is? (I am not being sarcastic--I really would like to know!)

Posted by: disillusioned layman | Oct 27, 2007 7:44:49 AM

Disillusioned Layman - I'm sorry you're disillusioned. Here are three better ways this could have been solved: (1) the prosecution could have laid off, (2) the governor could have used his pardon power, or (3) the legislature that changed the law to help similarly situated people in the future could have changed it so as to apply retroactively.

Posted by: well | Oct 27, 2007 10:54:00 AM

Dear layman and well, I,m with layman. The problem is that the sentence was disproportionate to the crime. To say the prosecutor should lay off is, in my 34 years experience, futile. Likewise, it is equally futile to rely on an institution like a legislature, whose members are more interested in reelection than justice. This is exactly what the Constitution was intended to address, overreaching by the state. bruce

Posted by: bruce cunningham | Oct 27, 2007 11:35:20 AM

As I indicated before, I am not unsympathetic to Wilson, and I support the result. (I do share some misgivings about the message thate we're going to leave 15 year old girls "on their own", but that debate's for another day). However, one of the reasons we have these problems is that when the legislature does not set mandatory minimum sentences, the judiciary is not always responsible, see, e.g., Frederica Massiah-Jackson. And when the judiciary gives absurdly low sentences, people suffer.

Wilson did commit a crime, and he could have taken a plea deal. He didn't. That could have been the safety valve here, and it wasn't. We have to keep the macro implications in mind here. A regime that has mandatory minimums and prosecutoral discretion will sometimes create silly results, but a regime that gives more leeway to judges also has problems too.

I get slammed for pointing things like this out. Slam away.

Posted by: federalist | Oct 27, 2007 12:49:02 PM

So if everyone surrenders their right to trial (submits to extortion) problem solved!

Posted by: George | Oct 27, 2007 2:36:51 PM

I simply don't buy the argument that judicial "over-reliance" on the 8th Amendment will stifle extra-constitutional reform. Hasn't it usually worked the other way around? Didn't the exclusionary rule prompt police departments to change their policies and care a little more about privacy rights? Didn't Miranda make interrogations a little less exploitative? Didn't Apprendi prompt some states to amend their sentencing schemes? Didn't it take Brown v. Board of Education to integrate some school districts? I can't claim to be a scholar of American legal history, but my impression is that in many instances, extra-constitutional reform comes only after the judiciary declares the existing system unconstitutional.

Laura is clearly worried about a situation in which courts regularly overturn sentences on 8th Amendment grounds, prompting legislatures to think, "Oh, we don't have to worry if our sentencing scheme is unconstitutionally draconian -- whenever a sentence goes too far, the court will fix it." Is this a possibility? Sure. But let's be realistic about the alternative. We all know how politicians would rather scratch their eyes out than seem "soft on crime." If courts DON'T ever exercise the 8th, will that really generate an impetus for change? Won't that allow legislatures to think, "Our sentencing scheme is fine -- why, it's not like courts ever say it violates the 8th Amendment or anything."

Stated another way: If the ref never calls a foul, there's no incentive for the players to follow the rules.

Posted by: Just Another Defender | Oct 27, 2007 7:05:26 PM

The courts need to impose the commands of the Constitution when rights are trampled. That is what they are there for. I can not believe that we have a problem with the courts entertaining 8th Amendment violation claims. Does anyone have a clue as to how many reported cases are out there for this calendar year?

Posted by: M.P. Bastian | Oct 28, 2007 9:03:24 AM

Thank you, George for saying bluntly what many of us looking in dismay at our judicial system believe. If I were accused of a crime I knew nothing about, I would be pressured to take a plea with the threat that, should I go to trial, the prosecutor can get me convicted and would ask for the longest possible sentence as punishment for my taking up the legal system's time by going to trial. This is extortion, plain and simple, and it is wrong. It also turns our assumptions about the system on their head, because it essentially requires me to be able to prove I'm not guilty. That's guilty until prove innocent. That's not the way our legal system is supposed to work.

Federalist, having been a fifteen-year-old girl myself (a very long time ago), there are a number of solutions other than throwing all our teenage boys in prison. (I assume, of course, that you maintained your pristine virginity until you were 18, and then only interacted with other 18-year-olds.) I seem to remember that most girls in high school dated boys a year or two older because the boys our own age seemed so immature. I have checked this out with a non-random sample of the college girls I teach, and it still seems to hold generally true. Parents in my neighborhood didn't allow us to date until we were sixteen. We were taught there were some things to which you just said "no." Boys were also taught that there were limits on their behavior. Of course, not everyone abided by the rules, but the idea was there and parents attempted to encourage and enforce appropriate behavior.

Times have changed, and what I was brought up to think was "bad" behavior (like having sex and getting pregnant) among teenagers has changed. Teenagers are doing what some have always done, but it appears much more widespread. The moral stigma has largely been removed. Parents abdicate their responsibility and expect the criminal justice system to solve the problems they are having with their kids.

Nevertheless, I don't understand why, given that they are both under 18, a willing 17-year-old boy is any more culpable than a willing 15-year-old girl. Why is the underage boy capable of consent when the underage girl isn't? Why do we assume that the girl is automatically a "victim" of the boy, even though both are experiencing a time of raging hormones, and the research I have read suggests that girls are reaching puberty earlier? (Yes, I know there are cases where the girl is older and then she winds up being the registered sex offender, but that sort of "equality" doesn't constitute justice.) Why don't we lock them both up? Or, more sensibly, why don't we find more appropriate and less destructive ways to handle this problem, which is probably as old as humanity?

Posted by: disillusioned layman | Oct 28, 2007 10:23:54 AM

Oh, one thing I forgot. Now I'm really showing my age! When I was a teenager, the "punishment" for most boys who got girls pregnant was to have to marry the girl and support the kid. Has it occurred to anyone lately that that might be a better solution than throwing the boy in prison and ensuring that he will never be able to support himself or anyone else, and that the girl and her child may well end up on welfare?
Just a thought.

Posted by: disillusioned layman | Oct 28, 2007 10:31:55 AM

disillusioned layman, I think your taunts about virginity etc. are off-base. And I am under no illusions about the environment that my own kids will face when they get older.

I have written here before that I don't look at 15 year-old girls as bad people if they engage in those activities. The problem is that we get things like the "San Antonio Spurs Posse", and that's not good either. In this case, Wilson plied girls with drugs and alcohol and participated in group sex with them. This is not your "Romeo and Juliet" scenario, and it is not something I believe is appropriate for 15 year old girls to engage in--not because I think that they are bad, but because I think it harmful to them--most parents, I think, would agree. The message we send when we completely decriminalize these acts is "girls, you're on your own". Additionally, we also risk crossing the line into forced sexual activity that may or may not be provable in a court of law.

I really do not know what the answer is. I do think that punishments for consensual sexual activity between minors or minors and young adults should not be permanently life-altering, and I also think that there ought to be a heavy dose of prosecutoral discretion, and there are examples of absolutely appalling choices by prosecutors, e.g., the "butt slap" case in Oregon. The prosecutor actually wanted 13 year old boys to be registered as sex offenders for life for that. Words cannot express my contempt for such a detestable human being.

And another thing, the more resources expended on Genarlow Wilsons, the less spent on murderers etc.

Posted by: federalist | Oct 28, 2007 11:37:56 AM

disillusioned layman,
As usual, I have the most utmost respect for you. Why can't anyone see your point? I was a seventeen year old boy dating a fifteen year old girl in my high school days. I don't have to tell you my experiences. Teenagers will experience sex, period.

Posted by: | Oct 28, 2007 11:48:28 AM

Laura writes: “Over-reliance on the 8th Amendment will stifle needed extra-constitutional reform.”

Uhm, did you read the case? In Wilson, the Court relied heavily on the legislative changes to determine that there was a proportionality problem. This was a case in which there was “extra-constitutional reform” which was “needed” and was not exactly “stifled.”

This brings up the question: what is this complaint about? Where is the “over-reliance”? Who is doing it? Where is “needed extra-constitutional reform” being stifled? Laura can’t just mention her experience as a public defender as if that is an argument in itself.

Posted by: Truth Hurts | Oct 28, 2007 12:39:29 PM

Federalist, I am not "taunting" anyone. My point is, prosecuting teenagers for having consensual sex is the height of hypocrisy. Most of us did stuff--we just had the good fortune not to get caught. You don't necessarily consider fifteen-year-old girls who engage in sex "bad," but you consider the seventeen-year-old boys they engage in it with "bad" enough to be punished. Why is it only the girl who needs protection? Couldn't a seventeen-year-old boy get AIDS from a fifteen-year-old girl?

Also, prison for ANY length of time, particularly for someone not even out of their teens, is by definition permanently life-altering. And depending upon the discretion of people who want to get elected by appearing as tough as possible seems to me to be a pipe dream.

The major ingredient which seems to be missing is parental guidance. Not that teenagers are going to listen any more than they ever have, but they need to know that certain behavior is not considered appropriate, at least by their parents. Boys will ask for sex. Girls who want to participate say yes. Girls who don't want to say no. Boys should respect that response. Up to that point I don't see a need for criminal justice involvement. I see a need for parental involvement.

The problem comes when the boy forces the girl, drugs her or otherwise coerces her. This is no more appropriate for teenagers than for older people. But if the girl says yes or is the initiator of sexual behavior or chooses to take drugs which are available, I don't see why her responsibility for the situation is any less than the boy's.

Posted by: disillusioned layman | Oct 28, 2007 8:52:19 PM

My point is, prosecuting teenagers for having consensual sex is the height of hypocrisy.

Among the charges against Genarlow Wilson was a charge for rape. The jury wasn't convinced. The prosecutor thought he was prosecuting a rapist, and it's not as if Wilson and the victim were boyfriend and girlfriend.

Posted by: | Oct 29, 2007 1:40:48 PM

I know at least one state doesn't prosecute teens who are "dating." But how do you define that? How do you define "boyfriend and girlfriend?" Do we define the number of dates they must have had to qualify? If they have only had three dates as opposed to four, is it OK to prosecute? This line of reasoning is absurd.

As to the rape charge, I have not read any details about why the prosecutor brought that charge. Was it because of a complaint by the girl involved (who I believe was also 17), allegations by other teens attending the party, or was it the prosecutor's interpretation of the video tape?

If the rape prosecution was a result of an allegation by the girl involved, then prosecution was appropriate. However, if it was the same kind of thing as the oral sex charge, in which the girl did not want Wilson prosecuted and said she was a willing participant, then I don't believe prosecution was appropriate.

My question is, did the prosecutor honestly believe he was prosecuting a rapist, or did he react to seeing a pretty disgusting video tape of behavior he deemed inappropriate? I suspect most of us did things during our teenage years that would embarass us to death if they had been video taped. Unfortunately, I don't think most teenage sexual encounters look like the depiction in Prokofiev's "Romeo and Juliet" ballet! Keep in mind, when teenagers read Shakespeare's play in high school English classes, they are taught that the situation is tragic, not criminal.

Posted by: disillusioned layman | Oct 30, 2007 8:09:42 AM

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