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November 10, 2009

Shouldn't the Sullivan case be relatively easy for a true Eighth Amendment textualist?

I have long been a fan of textualist approaches to the Constitution because, at the very least, textualism provides a useful starting point for constitutional debates.  And, in some prior posts (see here and here and here), I have suggested that a textualist approach to the Eighth Amendment might make some seemingly hard cases not quite so hard.  In my mind, the Sullivan case argued yesterday in the Supreme Court is one of those cases that seems like it should be relatively easy for a true Eighth Amendment textualist.

Here is the full text of the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."  In Sullivan, the Court is considering the constitutionality of a prison sentence of life without the possibility of parole for a 13-year-old who committed a rape.  For a textualist, the question would seem to be whether Joe Sullivan's punishment under these circumstances is "cruel and unusual."  

Part two of the textual analysis seems easy: Joe Sullivan's sentence is surely "unusual."  Sullivan is one of only two 13-year-olds to have received an LWOP sentences for a non-homicide offense in perhaps all of American history.  Because the constitutional text references "unusual" (as opposed to "unique") punishments, a true Eighth Amendment textualist would likely have to conclude that Sullivan's sentence satisfies the second prong of the Constitution's punishment prohibition.

The claim the Joe Sullivan's sentence is also "cruel" could generate more debate, though this term also seems a relatively easy call within a nation conceived in liberty that generally considers children less responsible (and worthy of more protection) than adults.  Specifically, in light of American traditions and commitments, I have a hard time envisioning a sentence more "cruel" than one which confines a juvenile to spend his entire life in prison with no hope or chance for freedom based on an act committed at age 13 which did not take another human life.

Though there was precious little focused textualist discussion in the juve LWOP cases argued yesterday, I did get the sense from the cold transcript that Justice Breyer and perhaps also Justice Sotomayor were drawn to these textualist concepts.  It would be somewhat ironic if these Justices (and not an avowed textualist like Justice Scalia) end up being the only ones who take the text of the Eighth Amendment seriously in Graham and Sullivan.

A few related posts on the Graham and Sullivan cases and Eighth Amendment jurisprudence:

November 10, 2009 at 01:12 PM | Permalink


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Tracked on Nov 10, 2009 5:29:48 PM


Except that there's the whole common law point of 12 being the age of reason. So a 13 year old convicted of rape would hang. And the pure text doesn't make age distinctions, so either LWOP is cruel and unusual under all circumstances or it is not, you don't get to make that choice based on the age of the offender.

Actually there seemed to be some disagreement on that point of common law on whether 12 or 14 was the age at which juveniles would face criminal sanction.

Posted by: Soronel Haetir | Nov 10, 2009 1:47:51 PM

Doug, how would you respond to the case of Mary Wade (http://en.wikipedia.org/wiki/Mary_Wade)? In 1788, at the age of 11, she was arrested for theft. After trial and conviction, she was sentenced to death by hanging.

When King George III recovered from madness in 1789, all of the women on death row had their sentences commuted. Instead, Wade was transported to the penal colony in Australia, and today her descendants there number in the tens of thousands.

So here is evidence that, in England at about the time the Bill of Rights was adopted, the sentence of death for an 11-year-old was considered acceptable, even for a first offender whose crime was much less severe than Sullivan's.

Posted by: Marc Shepherd | Nov 10, 2009 2:09:55 PM

I guess it's been a while since we've had a post suggesting that particular public officials who don't agree with the post's drive-by analysis must lack principles or the courage of their convictions.

I can see it now.

Scalia clerk: Judge, we need to tear up that draft dissent in Sullivan and start over again. Check out this blog post.

Justice Scalia: Don't be hasty. We put weeks into that, and it's a perfectly good textualist analysis and application of the Eighth Amendment. We start with the text, we discuss the history, practice and commentary from the time the Eighth Amendment was adopted all of the way through the Nineteenth Century, and we also have an exhaustive description of how the Court has interpreted the Eighth Amendment. Does this post mention anything I left out?

Clerk: Well, we address the "juveniles are different" argument at length and talk about the Bill of Rights, but what do you think about the idea that this is "a nation conceived in liberty"?

Scalia: Well, I'll be damned! How did we all miss this? This is such an easy case after all! I can't believe that I simply haven't been taking textualism seriously! How did I miss the fact that the Eighth Amendment becomes so easy once we read cruel in light of the fact that we are "a nation conceived in liberty!" Call Justice Kennedy's chambers and tell him I'll join that awful opinion of his so long as he takes out all of that discussion of what the Europeans do. And call Reinhardt and tell him he can go ahead and abolish prisons in California if he wants.

Clerk: Huzzah! God bless us, everyone.

Posted by: anonymous | Nov 10, 2009 2:19:36 PM

When Gary Gilmore was executed by Utah in 1977, it was the first execution in the USA in ten years. It was thus not merely unusual, but arguably, in its time, unique. Nonetheless, there was no successful "cruel and unusual" challenge to it.

The other point worth mentioning is that "unusual," as understood by the Framers, did not mean "only occurring once in a great while." It meant "bizarre or freakish" -- i.e, drawing-and-quartering, burning at the stake, etc.

Posted by: Bill Otis | Nov 10, 2009 2:25:16 PM

Bill, isn't it "bizarre or freakish" that a minor is too young and immature to do any number of things but is suddenly an adult for purposes of adult court?

Posted by: George | Nov 10, 2009 2:32:11 PM

As I have explained in other comment threads, Marc, I think LWOP is a sentence that is both historically and subjectively even more unusual and more cruel than death.

One reason for my view is the fact that lots of kids die every day --- from car accidents and diseases and other natural and unnatural causes. When a kid dies, it is often a tragedy, but it is not itself unusual nor necessarily cruel. However, very few kids are ever locked in a cage without any hope of eventual freedom foreover. And when some kids are held like this by crazed sex offenders, we see the event as both unusual and cruel.

I know many folks do not share my view that an LWOP sentence is historically and subjectively even more unusual and more cruel than a death sentence. But I do feel confident that the Framers if here today would not be much troubled by how we use death sentence, but probably would by much troubled by how we use LWOP.

Posted by: Doug B. | Nov 10, 2009 2:58:15 PM

"However, very few kids are ever locked in a cage without any hope of eventual freedom foreover. And when some kids are held like this by crazed sex offenders, we see the event as both unusual and cruel."

I'd say this was leading with your chin again, but that doesn't really capture it. First of all, Doug, there is hope in two forms: (a) executive clemency and (b) legislative change. Maybe not great hope, but slim hope nonetheless. Moreover, there's the practical reality that people do get out of prison. Realistically, I'd say the chance of many of these juvie offenders NEVER getting out of prison is pretty remote.

Second, surely you're familiar with the Constitution protects us against what the government can do. It says nothing about what a sex offender can do to a kid. And really Doug, are you comparing a lawfully imposed punishment with a sex offender putting a kid in a cage? That's perverse.

Finally, you miss the larger point. No person of sense likes the idea of incarcerating a juvenile for life. But we as a society have decided that it's necessary to protect society from the predations of violent juveniles.

Posted by: federalist | Nov 10, 2009 3:20:25 PM

I believe the framers would be horrified by our death penalty practices in how subjective its application is.

Posted by: Soronel Haetir | Nov 10, 2009 3:21:20 PM

Federalist - how are we supposed to square your assertion that there is only a slim hope of getting out, and that that hope arises from clemency and legislative change, with your assertion that, as a practical matter, people get out of jail and therefore most of these offenders sentenced to LWOP have only a slight chance of actually spending life in jail? Are you suggesting that the reason most of these offenders will get out of jail is because they escape, or have I missed some alternative?

Posted by: Gray Proctor | Nov 10, 2009 4:11:45 PM

Gray, first of all, Doug said that there isn't "any hope", which i think is wrong.

Second, Heirens seems to be a pretty rare case.

The apparent difference is the reason for hope and the reality that when many of these characters are "aged out", they will likely be quietly released. I think you make the mistake of assuming that an LWOP sentence is immutable. A lot of things change over the years.

Posted by: federalist | Nov 10, 2009 5:02:02 PM


I realize you may have been just meeting DB on his own turf (textual/originalism), but my response to the example of Mary Wade is to say that this is an example of why we can't allow the meaning of our modern Eighth Amendment be controlled by 18th-century British practice. The fact that an originalist approach to the amendment would require affirmance of a death sentence against an 11-year-old for a property crime is in my view a persuasive advertisement for the "evolving standards of decency" doctrine (even with all its flaws).

Posted by: Observer | Nov 10, 2009 5:09:28 PM

I found it interesting, as alluded to be Soronel Haetir, that Justice Scalia is now promoting the "age of reason" as the controlling common law principle. After all, Justice Scalia's own majority opinion in Stanford v. Kentucky, as well as his Roper dissent, focused on the pre-founding common law's rebuttable presumption of incapacity for those 14 and under---complete with impressive citations to Blackstone and Hale---and failed to make any mention of the age of reason. But now, in a case involving a 13-year-old petitioner, he appears to be shifting common-law tacks and coming up with the "age of reason," which is apparently (and conveniently) 12.

My own sense is that none of these concepts transfers with much accuracy to our modern system or casts much light on the issue at hand now; but I do think it is interesting to note the shifting sands of Scalia's so-called originalism.

[Cue responsive post positing some narrow distinction between "capacity" and the "age of reason" that has escaped me because I am an ignoramus, and thus reaffirming that Scalia is relying on deep "originalist" principle, as opposed to opportunistically scavenging history to support his preferred view of the 21st century Constitituion.]

Posted by: Observer | Nov 10, 2009 5:13:29 PM

"But we as a society have decided that it's necessary to protect society from the predations of violent juveniles."

We? Please. I, and many others, never jumped on that bandwagon.

Posted by: = | Nov 10, 2009 5:13:30 PM

It is not cruel for a defective person to remain in a structured setting. On the outside, he has a 50% chance of being murdered. For an opponent to the death penalty, prison is the safest place for this criminal. He will thrive on the classes, therapy groups, and free education.

Posted by: Supremacy Claus | Nov 10, 2009 9:36:18 PM

This post made the scotusblog roundup. They seemed to think you were serious.

Posted by: Soronel Haetir | Nov 11, 2009 11:21:59 AM

Observer, yes: I was indeed "meeting Doug on his own ground." Doug is right that Sullivan is an easy case for a true textualist: the defendant loses.

Posted by: Marc Shepherd | Nov 11, 2009 4:10:35 PM

lol at fif’s album leaking a month ahead of time…yikes…shit aint selling at all now

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