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June 27, 2012

Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In this second post now, I question claims about LWOP as a method of punishment in what I am calling the Thomas/originalism dissent.

Justice Thomas' Miller dissent, which was joined only by Justice Scalia, rests on an originalism claim in this sentence:  "As I have previously explained, '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.'  Graham (dissenting opinion)[FN 2]." The associated footnote 2 then says (cites omitted): "Neither the Court nor petitioners argue that petitioners’ sentences would have been among the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.  Nor could they. Petitioners were 14 years old at the time they committed their crimes.  When the Bill of Rights was ratified, 14-year-oldswere subject to trial and punishment as adult offenders.  Further, mandatory death sentences were common at that time.  It is therefore implausible that a 14-year-old’s mandatory prison sentence — of any length, with or without parole — would have been viewed as cruel and unusual."

Though I am not deeply versed in Eighth Amendment originalism, I do know some reasonably contest that the Eighth Amendment was only "originally understood as prohibiting torturous methods of punishment."  But even if one fully accepts Justice Thomas' claim that the Eighth Amendment is only to be viewed as a restriction on punishment methods, I do not find it "implausible" to contend that those who enacted the Eighth Amendment in the late 18th century (and/or those who enacted the Fourteenth Amendment in the mid 19th Century) would view an LWOP prison term as "akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."

A critical assumption built into the (suspect) logic of Justice Thomas' reasoning in footnote 2 is that, because the death penalty was not considered a cruel and unusual method of punishment for teens at the time the Bill of Rights was adopted, surely then must the seemingly lesser punishment method of prison not have been considered cruel and unusual.  But the Eighth Amendment surely was never meant or understood to support the claim that because death is a constitutional method of punishment everything short of death and/or leading up to death is also constitutional.  Many infamous forms of torture punishments around during the colonial period (such as thumbscrews, ducking stools, and the rack) were often not expected or intended to cause death, and yet all seem to agree that these methods of punishment would violated the Eighth Amendment even from an originalist perspective.  In addition, originalists seem also to agree that severe physical punishments designed to cause a painful "lingering death" in the process of completing an execution (such as the breaking wheel or drawing and quartering) were modes of punishment being barred by the Eighth Amendment's prohibition on cruel and unusual punishments.

Of course, being locked in a prison cage is surely not as physically painful a method as thumbscrews or the rack, especially over a short period of time.  But prison as the deprivation of liberty over time is surely a distinct method of punishment, and an LWOP prison term lasting many decades is surely much more physically and mentally taxing than, say, being subjected for a few days to thumbscrews or waterboarding.  (Indeed, I would wager many relatively young offender serving an LWOP would agree to enduring thumbscrews or waterboarding for a few days in order to get a real chance for an early release.)  In other words, though a day in prison is surely a less torturous method of punishment than a day on the rack, I am not sure that necessarily means that an LWOP prison term lasting many decades is a less torturous method of punishment than a day on the rack.

Moreover, bringing back in the Framers' mindset, in this context I often think of Patrick Henry's famed quote of "Give me liberty or give me death" and President Lincoln's famed description of America as a nation "conceived in liberty."  Against that backdrop, I think one might fairly conclude that many Framers would have viewed a LWOP prison term's permanent deprivation of human liberty to be a method of punishment (much?) worse than death.  Indeed, what truly makes an LWOP sentence so severe and extreme is that it is arguably just a form of "lingering death" because deprivation of any chance at parole ensures that an offender will forever linger in prison (sometimes with only slightly more liberty than someone left on a rack if always kept in solitary confinement) until he eventually dies.  (The fact that prison was concevied and designed to be soley a method of rehabilitative punishment around the time of enactment of the 14th Amendment add to my view that an LWOP prison term might very well have been viewed as both cruel and unusual to many Americans throughout much of American history.)

My point here is decidedly not that I think an originalist approach to the Eighth Amendment is ideal or provides a clear jurisprudence concerning when an LWOP sentence might and might not be constitutionally permissible.  Rather, as in all my posts in this series on the Miller dissents, I just want to flag the reality that the originalist claim that only some methods of punishment are unconstitutional does not necessarily and obviously, as Justice Thomas seeks to suggest, produce the conclusion that the LWOP sentences at issue in Miller were constitutional.  Indeed, because liberty-deprivation through confinement in prisons (and especially the LWOP sentence) are really a very modern mode/technology of punishment wholly unknown to the Framers, I think trying to figure out what the Framers would have thought about LWOP prison terms is a bit like trying to figure out what the Framers would have thought about the internet: one's personal views about the new technology will necessarily color one's judgment as to what the Framers' would have thought.

Related post in this series:

June 27, 2012 at 11:22 AM | Permalink


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B.I.N.G.O.!! Excellent post, Doug. If memory serves, the first state prison opened in 1821 in Pennsylvania, three decades after the Constitution was ratified. Depriving someone of their liberty for decades on end, much less LWOP for a 14-year old, was inconceivable at the time the Framers drafted the 8th Amendment. Clarence Thomas seems to believe Patrick Henry was just kidding.

Posted by: Gritsforbreakfast | Jun 27, 2012 12:11:32 PM

I am eagerly awaiting your critiques of the majority opinion which I'm sure are forthcoming. In particular, do you think the CJ is right that the majority has laid the groundwork for overruling all kid LWOP sentences because they are mandated now to be unusual?

Posted by: Joe | Jun 27, 2012 12:16:36 PM

Doug, following up your post about whether it would be helpful to continue blogging on Miller, about an hour ago I received a phone call from a relative of a man whose cousin was sentenced to LWOP when he was 16 years old. They want to know whether the new case is helpful. Blog on, good friend!


Posted by: bruce cunningham | Jun 27, 2012 1:07:21 PM

And what did Justice "T" say about benifit of clergy?, From wikipidea:

In the United States, section 30 of the Crimes Act of 1790 eliminated the benefit from federal courts.[6] But, it survived well into the mid 19th century in some state courts (for example, South Carolina granted a defendant benefit of clergy in 1855). Many states have abolished the clergy benefit by statute or judicial decision; in others, it simply has fallen into disuse without formal abolition.

If the DP was broad for many crimes, we could call that a conservative proposition. If benefit of clergy was possible, we could call that liberal. So the actual originalism was probably somewhere in the middle, which we could call independent. :)

Posted by: George | Jun 27, 2012 2:59:19 PM

|| "Neither the Court nor petitioners argue that petitioners’ sentences would have been among the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.~Justice Thomas ||

Mr. Berman,

This is a testable grounds of argument. Did the Court or petitioners argue as such? If not, what is suspect with Justice Thomas' reasoning?

Wherein exists a "suspect judgment or assertion or conclusion at the heart of each dissenting opinion"?

Your claim appears to rest solely on the following:
|| I do know some reasonably contest that the Eighth Amendment was only "originally understood as prohibiting torturous methods of punishment.~~Prof. Berman ||

Have those whom you know published a compelling case to contest this concrete logic?

Posted by: Adamakis | Jun 27, 2012 3:07:08 PM

Adamakis: It is true that the petitioners did not press or even present an originalist argument concerning mandatory juve LWOP, no doubt because only two Justices (Thomas and Scalia) have ever broadly endorsed/embraced a purely originalist interpretation of the Eighth Amendment. The main point of my post is that one could --- though petitioners did not --- make an originalist argument against juve LWOP (and even do so premised on the Thomas claim that only certain methods of punishment are barred by the 8th A).

Meanwhile, for just one (of many) different takes on the original meaning of the Eighth Amendment, here is a link to an interesting recent article: http://www.law.northwestern.edu/lawreview/v102/n4/1739/lr102n4stinneford.pdf, THE ORIGINAL MEANING OF “UNUSUAL”: THE EIGHTH AMENDMENT AS A BAR TO CRUEL INNOVATION by John F. Stinneford. Here is one key sentences from the analysis: "Once one recognizes that “unusual” actually means “contrary to long
usage,” ... one realizes that the Cruel and Unusual Punishments Clause almost certainly WAS intended to cover grossly disproportionate punishments."

Posted by: Doug B. | Jun 27, 2012 3:28:42 PM

I think that is the truth Doug. I think that sometimes Thomas dissents not because he disagrees with the outcome but because he disagrees with the reality that the case is not being tried on his selected philosophical grounds. So rather than puzzling out what an orginalist might actually think about LWOP on his own he simply mails in his dissent. It's a strategy that's not helpful to anyone frankly and rather childish.

Posted by: Daniel | Jun 27, 2012 4:59:26 PM

Some of this dispute is more about being a narrow originalist (whether that narrowness is right or wrong is another matter) as opposed to a broader originalist. The narrow originalist asks not what a framer would think about the novel innovation, but rather whether the novel innovation sufficiently resembles those practices intended to be banned by the Framers. The broader originalist is concerned with the principles that the Framers intended and then seeks to apply those principles to the new set of facts.

Given the presumption of constitutionality, it is easy for a narrow originalist to "mail" it in if no party or amicus bothers making the analogy between the challenged procedure and the procedures that were forbidden at the time of the Framers. Even for a broader originalist, the presumption of constitutionality still requires an attempt to engage the original principles.

Posted by: TMM | Jun 27, 2012 5:43:15 PM

As to not helpful, Thomas' insisting on using an idiosyncratic reason in the Confrontation Clause case to unduly confuse the law is a case in point.

The OP is on point -- mandatory death sentences are not the same thing as mandatory life sentences. As a character in the movie Yellowbeard noted, the idea a person would survive in prison for decades would not be readily imagined. Reverting current penal practices to a time where penitentiaries were just beginning to be developed is akin to anachronistic.

Such supposition underlines the perils of skin deep originalism.

Posted by: Joe | Jun 27, 2012 5:56:44 PM

As much as I disagree with Thomas (which is a lot), I am not prepared to call him “childish.” I would say that he does not believe in writing pratically in order to achieve consensus. His views are what they are, and if no one joins him, he doesn’t give a damn and will write a solo opinion. He probably leads the Court in solo opinions, and has on numerous occasions failed to hold a majority when he was assigned a lead opinion. He is seldom assigned the tough 5-4 cases, due to the risk that he’ll come out with a rationale that doesn’t command five votes.

Posted by: Marc Shepherd | Jun 27, 2012 6:08:41 PM

Whether he is childish or not as a person I don't know but I think his approach to judging is childish and does the court a disservice. A judge has duty not only to his principle but to the system itself. I don't agree with Roberts on many things but at a personal level I've admired his willingness to vote for a position he might not embrace with all his heart but which allows the court to speak with clarity and authority. Being able to do whatever one damn well pleases is a mark of immaturity in my eyes.

Posted by: Daniel | Jun 27, 2012 7:09:15 PM

"[b]eing able to do whatever one damn well pleases"
"it is easy for a narrow originalist to "mail" it in"
"not believe in writing pratically [sic]"
"the perils of skin deep originalism"
"approach to judging is childish"
"not helpful to anyone frankly"
"using an idiosyncratic reason"
"does the court a disservice"
"akin to anachronistic"
"doesn’t give a damn"
”mark of immaturity"
"rather childish"

Justice Thomas, really?

Posted by: Adamakis | Jun 28, 2012 9:56:18 AM

Justice Thomas was involved with this case, but he was not the one displaying childish idiosyncrasy.

THOMPSON v. McNEIL (2009) 129 S. Ct. 1299

Statement of JUSTICE STEVENS respecting the denial of the petition for writ of certiorari.

“In prior cases, both JUSTICE BREYER and I have noted that substantially delayed executions arguably violate the Eighth Amendment's prohibition against cruel and unusual punishment..Two death warrants have been signed against him and stayed only shortly before he was scheduled to be put to death. The dehumanizing effects of such treatment are undeniable. …”

…("[T]he process of carrying out a verdict of death is often so {129 S. Ct. 1300} degrading and brutalizing to the human spirit as to constitute psychological torture…").

“Some respond that delays in carrying out executions are the result of this Court's insistence on excessive process. But delays have multiple causes…unacceptably cruel. This inevitable cruelty…”

“"I have relied on my own experience in reaching the conclusion
that the imposition of the death penalty” is unconstitutional.""~~J.P. Stevens, 217 S. W. 3d 207

Posted by: Adamakis | Jun 28, 2012 10:00:43 AM

Here's the immaturity of Justice Thomas:
THOMPSON v. McNEIL (2009) 129 S. Ct. 1299

JUSTICE THOMAS, concurring.

"I remain "unaware of any support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed."

It makes "a mockery of our system of justice . . . for a convicted murderer, who, through his own interminable efforts of delay . . . has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional."

“The issue is not whether a death-row inmate's appeals "waive" any Eighth Amendment right; the issue instead is whether the death-row inmate's litigation strategy, which delays his execution, provides a justification for the Court to invent a new Eighth Amendment right. It does not. See Knight, supra, at 992, 120 S. Ct. 459, 145 L. Ed. 2d 370 (opinion of THOMAS, J.)

". . . It is incongruous to arm capital defendants with an arsenal of 'constitutional' claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed").

“Three juries recommended that petitioner receive the death penalty for this heinous murder, and petitioner has received judicial review of his sentence on at least 17 occasions.”

At the Supreme Court,
liberalism is the disease; originalism is the cure.

Posted by: Adamakis | Jun 28, 2012 10:05:25 AM

"[O]riginalism is the cure." Phooey!

With that thinking, Plessy v. Ferguson and Bowers v. Hardwick would still be on the books, and Loving v. Virginia would have been decided differently.

Posted by: Calif. Capital Defense Counsel | Jun 28, 2012 6:58:27 PM

|| “Tourgée built his case upon violations of Plessy's rights under the Thirteenth Amendment, prohibiting slavery, and the Fourteenth Amendment, which guarantees the same rights to all citizens of the United States, and the equal protection of those rights”.||

// ”the Court rejected Plessy's arguments based on the Fourteenth Amendment, seeing no way in which the Louisiana statute violated it.[…
When summarizing, Justice Brown declared, "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act,…”//

How was the Court in Plessy v. Ferguson relying on originalism?
Was not the dissenting justice, John Marshall Harlan, the sole voice demanding adherence to the plain interpretation of our legal 'Bible', calling it a "color-blind" constitution:

\\ "Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law...The arbitrary separation of citizens on the basis of race…is wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds." \\

Posted by: Adamakis | Jun 30, 2012 11:32:55 PM

Felony murder, in which an accomplice was singled out for identical treatment to the actually killer was a post-Founding compromise and did not exist at the time of the founding. It didn't matter much then because there were many non-murder offenses where death was the penalty. But, one did not have murder by association at the time as is often the case in juvenile sentences these days.

Solitary confinement was also absent.

Posted by: ohwilleke | Jul 2, 2012 4:04:02 PM

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