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May 19, 2010

Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?

GC Having now had a chance to read and reflect on Justice Thomas's dissent in the Graham Eighth Amendment case, I am back to using the tasty term Graham crackers to flag what I view to be the really deep and really hard (and thus really tasty) intellectual questions that Graham raises.  Specifically, as flagged by the title of this post, I am wondering if all originalists agree with Justice Thomas's seeming conclusion that the LWOP sentence at issue in Graham is obviously constitutionally sound.  There are two aspect of this question I wish here to unpack.

1.  Might an originalist see extreme incarceration as a worrisome "method" of punishment?:   A key move in Part II of Justice Thomas's dissent is to assert that Eighth Amendment proportionality analysis is an improper jurisprudential creation by the modern Supreme Court.  According to Justice Thomas, it is "now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."  Dissent at 3-5 (emphasis in original; cites omitted).  In this discussion, via a parenthetical to a legal history cite, Justice Thomas thereafter notes that "crimes in the late 18th-century colonies generally were punished either by fines, whipping, or public 'shaming,' or by death, as intermediate sentencing options such as incarceration were not common."  Id.

Significantly, Justice Thomas does not take a moment to connect these historical dots before launching into a (relatively effective) attack on aspects of the majority's proportionality work.  That is, though he notes that the so-called "intermediate sentencing option" of incarceration was uncommon at the time of the Constitution was written, Justice Thomas never explains or explores whether the Framers and/or ratifiers of the Eighth Amendment might have considered permanently locking a person in a cage for his entire life to be a "torturous method of punishment" that is akin to punishment "considered cruel and unusual at the time the Bill of Rights was adopted." 

In modern times, there is a broad tendency to assume that death is obviously a more extreme punishment then LWOP.  Whether this is true as a modern reality, I do not think it would be so obviously true for the Framers and/or ratifiers of the Eighth Amendment.  After all, Patrick Henry famously cried "Give me liberty or give me death!"  Moreover, there is little doubt that certain forms of extreme incarceration could readily become a "torturous method of punishment."  For example, imagine if a legislature as a cost-cutting measure ordered that prisoners who committed the certain crimes should receive only one serving of bread and water per day or that certain offenders should be kept permanently in a minuscule cell without any light or ventilation or toilet facilities.  I suspect some (many? most?) originalists would think this kind of use of incarceration as method of punishment would be akin to what the Framers sought to prevent via the Eighth Amendment.  Is it too mcuh of a stretch, then, for some originalists to view use of LWOP, which tells an offender he will never again have even a chance to live outside a cage and will only be able to leave prison via a coffin, as a potentially "torturous method of punishment"? 

2.  Might an originalist see LWOP as a structural constitutional problem?:  Thinking about Justice Thomas's originalist instincts against the backdrop of the second-look ideas in the Graham concurrences leads me to another (originalist?) point.  I have been lately thinking about the Eighth Amendment in light of the Constitution's obvious affinity for separating government powers and structural checks and balances.  Of particular note, the Framers through the Reprieves and Pardons Clause, granted the U.S. President what might be called broad criminal justice second-look power.  Indeed, this Clause has been interpreted to mean that Congress cannot pass a law that in any way restricts the President's clemency authority.

If an originalist were now to view parole boards as the modern loci for historic clemency powers --- and that is a big IF --- such an originalist might have structural concerns with any legislative efforts to entirely eliminate a parole board's authority to give relief to certain offenders.  Stretching these concepts may bring one perhaps problematically close to claiming that the Constitution creates a kind of right to parole in all cases, and this would seem to be a hard (originalist?) argument to make truly compelling.  But I do think there is something to the idea that the Framers would be uniquely troubled by the way LWOP sentences  concentrate permanent power over certain types of offenses or offenders; in turn, I think some originalists could find especially appealing at least Chief Justice Roberts' sense that appellate judges must sometimes use the Eighth Amendment as a kind of constitutional backstop for extreme imprisonment punishments.

Because I am not a true originalist, I may be crazy to even try to unpack my instincts that there is more to say about originalism and the Eighth Amendment than what gets said by Justices Scalia and Thomas in this setting and others.  But, perhaps because some true originalists may inclined to read and respond to my musings here, I hope that what I have said in this post could start a dialogue about originalism and modern punishment practices.

Some recent related posts with Graham analysis:

UPDATE: In the comments, Sara Mayeux points to this terrific post of hers from a few days ago at Prison Law Blog, where she makes these trenchant points (among others) that echo my musings in point 1 above:

Both Stevens and Thomas ... seem to assume that 18th century and 21st century beliefs about the hierarchy of punishments are basically the same, even if beliefs may change about where on that hierarchy punishment stops being “decent” and starts being “cruel and unusual” (and even if Stevens and Thomas disagree about whether that move matters for Eighth Amendment jurisprudence).  That is, both justices seem to assume that, just like a 21st century person, an 18th century person would obviously have thought death was worse than LWOP....

Here’s the big problem: I suspect that late 18th century people would have had simply and utterly no way to conceive of LWOP, much less place it on a hierarchy with the death penalty.  Some jurisdictions used prison terms as punishment by the late 18th century, but it wasn’t yet the default (not until about 1810 in Northern states and later in other regions), sentences weren’t nearly as long as they are today, there was no such thing as “parole,” prisons were very different sorts of institutions, etc., etc., etc.  I actually wonder if a late 18th century person might not have thought LWOP crueler than a quick execution, or at any rate very bizarre (why not just end the child’s life if he is truly irredeemable, is what I expect an 18th century person might have thought), but I don’t study that period enough to be confident in that.  I do know enough to be confident that to answer this question satisfactorily would take a lot more research into late 18th century beliefs about crime, punishment, the nature of life and death, etc., than just assuming that whatever we today think is a “harsher” punishment is also what a person in an entirely different time and place would think.

In another related originalist reference, a helpful reader reminded me that NYU's Center on the Administration of Criminal Law filed this amicus brief which sought to provide some originalist arguments in favor of Sullivan and Graham.  The NYU amicus brief's principal histoircal point is that "the elimination of proportionality review in the noncapital context would be inconsistent with the Eighth Amendment's tect and original meaning." 

May 19, 2010 at 03:27 PM | Permalink


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"If an originalist were now to view parole boards as the modern loci for historic clemency powers --- and that is a big IF...."

I wouldn't call that a "big IF." I would call that a NOT.

Although parole may historically be seen as an outgrowth of clemency, the traditional clemency power still exists in addition to the parole structure in every state that I know of. The additional mercy mechanism of parole can be limited or dispensed with altogether, as the legislature sees fit.

Posted by: Kent Scheidegger | May 19, 2010 4:26:42 PM

I don't think Doug's question could plausibly have turned on whether the "traditional clemency power still exists," since it so obviously does. I read the question as: Given that the constitutional regime was conceived in the absence of the institution of parole, and given that reliance on that institution by the executives in the states and in the fed over time has (the argument would go) led to a withering away of the exercise of the traditional clemency power, what could an "originalist" say about that state of affairs and how it impacts the Eighth Amendment analysis?

Posted by: Michael Drake | May 19, 2010 5:44:23 PM

The second question, whether an originalist would see structural constitutional problems with parole, is really interesting, and I hadn't thought of it that way before. A related question though one that potentially cuts in the other direction: To the extent that parole boards are a sort of unaccountable "fourth branch" (which I guess depends on the specifics of how the parole board is set up in a given jurisdiction), is that problematic to an originalist?

As to the first question, I think you're right that Thomas is too quick to assume that death would have seemed harsher than LWOP for the founding generation. I am not sure that, at the time of the founding, a life imprisonment sentence would even have been conceivable. I have blogged some related thoughts at: http://prisonlaw.wordpress.com/2010/05/17/on-reading-graham-justice-stevens-and-thomass-ahistorical-historical-assumptions/

Posted by: Sara Mayeux | May 19, 2010 6:16:23 PM

Given that the founders had no problems with slavery that they weren't willing to overlook I fail to see how LWOP would have somehow crossed some magical hurdle or horror.

It may have been rare but there were cases of political prisoners being held for extremely long periods under house arrest or in the Tower of London as examples. I believe the only madness they would see would be our unwillingness to put down the criminals like we would a rabid dog.

Posted by: Soronel Haetir | May 19, 2010 9:45:44 PM

Soronel, they had big problems with slavery if it was applied to white people; the founders would have viewed criminal law through the lens of how citizens must be treated, so your slavery example is BS. After all, slavery wasn't a punishment for crime. It's undeniable that nowhere in the US colonies or 18th century America were offenders subjected to long prison terms, so they cannot be justified on originalist grounds without some highly dubious latter-day mindreading. Doug and Sara are totally onto something with the first question.

Posted by: Gritsforbreakfast | May 20, 2010 7:56:22 AM

Don't forget we can't look to foreign jurisdictions (Tower of London) for examples. Stick to reading the minds of the American Founders! They were completely united in their thoughts on the 8th Amendment which is why they made it so clear and easy for us to follow to the letter. For such a diverse group, it amazes me that each and every one of them was of one mind with the others and that we can now discern with certainty what those intentions were.

Perhaps Thomas is just being fiscally prudent. If we go back to the 18th C crime and punishment model, only about a dozen things will be illegal and we can punish pretty cheaply with a range of stocks, beatings or the death penalty. The prison unions may object, but think of the savings!

Posted by: Talitha | May 20, 2010 12:25:11 PM

It is notable that one of the early prison reforms (towards solitary confinement as the norm rather than the exception) was swiftly rolled back basically on cruelty grounds despite the good intentions of those who imposed it.

Also, recall that SCOTUS has found in prison whippings to be unconstitutional in certain circumstances, and there is a long and vigorous cases of successful prison overcrowding litigation based in part on the 8th Amendment.

A fair argument would make the case that there are prisons and then there are cruel prisons. The best analogy to modern very long prison terms where conditions are often reasonably tolerable compared to those of the third world or colonial America might be exile to a prison colony (e.g. Australia or Georgia), with the exception being prolonged solitary confinement which might be closer to colonial era prison conditions and a form of cruel and unusual punishment at least unless legislatively authorized and restricted to the same kind of crimes that would merit the death penalty otherwise.

Posted by: ohwilleke | May 20, 2010 7:38:24 PM

I think some originalists could find especially appealing at least Chief Justice Roberts' sense that appellate judges must sometimes use the Eighth Amendment as a kind of constitutional backstop for extreme imprisonment punishments.

Posted by: london apartments | Nov 13, 2012 7:01:53 AM

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