« Can a hunger strike by state prisoners in SHU have an impact? | Main | An Independence Day open thread seeking comments on liberty and freedom in the US »

July 2, 2011

"Cruel and Unusual Federal Punishments"

The title of this post is the title of this interesting and important new article by Professor Michael Mannheimer. Here is the abstract:

In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct.  This is the result of the confluence of two trends.  First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court.  Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.

Virtually all federal defendants who have challenged their sentences as, “cruel and unusual punishment,” in violation of the Eighth Amendment have failed.  This is not surprising. The Supreme Court jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes.  This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices.  Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth.  Indeed, one must go back a century to find a Supreme Court case addressing proportionality in the context of federal sentencing, and that case was highly atypical.  Thus, federal courts find themselves applying a deferential standard designed in large part to safeguard the values of federalism in cases where those values do not call for deference.

The task of this article is to re-discover the meaning of the, “pure” Eighth Amendment, unmediated by the Fourteenth.  Recent academic commentary about the original understanding of the Eighth Amendment correctly focuses our attention on the Clause’s main purpose of comparing a given punishment to those generally meted out at common law for the same conduct.  Yet these commentators fail to adequately appreciate the extent to which the Eighth Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-Federalists to secure individual rights through the preservation of a robust form of state sovereignty.  Moreover, the Anti-Federalists, and their political heirs, the Republicans, rejected a, “pre-realist,” vision of common law in favor of an approach that recognized the common law as varying State to State.  Thus, the Anti-Federalists took a decidedly State-centered and State-specific approach to the common-law rights that the Eighth Amendment was designed to encapsulate.  And the views and general outlook of the Anti-Federalists are critical to a complete understanding of the Bill of Rights, for it was they who won the concession of the adoption of the Bill as the price of union.

This contextualized account of the ratification of the Eighth Amendment evidences a design to limit the power of the federal government to inflict punishment for crimes to the same extent that the States limited their own power to punish.  That is to say, whether a federal punishment for a crime is, “cruel and unusual,” can be answered only in reference to the punishment for the same conduct meted out by the States.  Moreover, the Anti-Federalists’ views on the nature of the common law indicate that the appropriate comparator is the State where the criminal conduct occurred, not the States generally. But, in either event, the standard for determining whether a federal sentence is “cruel and unusual” ought to be far more stringent than that used in reviewing Eighth and Fourteenth Amendment challenges to State sentences.

July 2, 2011 at 11:21 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Cruel and Unusual Federal Punishments":


Absolutely. When the only yardstick to measure the 8th Amendment standard in federal sentencing cases is through the lense of the 14th, the entire principle behind the 8th Amendment and the Bill of Rights in general is ignored. When federal sentence lengths get completely out of hand, there are no safeguards against legislation under the current trend when dealing with Cruel and Unusual challenges.

The remedy to this is, in part, to have a group of justices in SCOTUS who understand and rule along the lines of the anti-federalists who were the driving force behind the Bill of Rights. However, since justices are replaced only by attrition, and politicians don't seem too interested in actually following the Constitution of this land, the chances of ending the criminalization of viturally everything under federal law and jacking sentences way above state norms are slim to none in my lifetime.

Posted by: Eric Matthews | Jul 2, 2011 1:05:15 PM

Might also be time a few u.s defendant took their cases to the U.N. and the World Court!

Posted by: rodsmith | Jul 2, 2011 2:58:46 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB