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August 31, 2021

Might any Justices be intrigued by notion that Eighth Amendment originalism makes the Boston Marathon bomber's death sentence suspect?

I have always been intrigued by writings by Michael J.Z. Mannheimer making originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments.  As he explains in "Cruel and Unusual Federal Punishments," the framers and ratifiers of the Eighth Amendment were particularly concerned about an oppressive federal government imposing  excessive punishments, and so they expected that "state law should be the benchmark for determining whether a federal punishment is 'cruel and unusual'."  Particularly because many federal  criminal laws and sentencing provisions are now particularly harsh when compared to state benchmarks — think many federal drug and gun mandatory minimums — Mannheimer's approach to the Eighth Amendment could have considerable modern purchase.  And, since this idea seems firmly grounded in originalism, one might hope that serious originalists might at least consider this idea when considering a notable federal punishment.

These matters are on my mind today because Professor Mannheimer just filed this interesting amicus brief in  US v. Tsarnaev, which just happens to involve a notable federal punishment for a notable criminal defendant.  Here is part of the brief's summary of argument:

In 1783, faced with a request by the Articles of Confederation Congress for unanimous consent by the States to implement a new impost on goods, Massachusetts assented.  But it did so only with conditions.  One condition was that, in enforcing the proposed impost within Massachusetts, the central government must not impose upon a violator of the impost law any “punishments which are either cruel or unusual in this Commonwealth.”  Georgia, New Hampshire, and South Carolina set the same condition, substituting “State” for “Commonwealth.”  Thus, a scant six years before the Bill of Rights was proposed by Congress and submitted to the States, we see a precursor to the Eighth Amendment in these state impost ratifications, which used language nearly identical to that which would appear in the Eighth Amendment.  And that language was State-specific; the measure of what punishments qualified as “cruel or unusual” was to be determined on a State-by-State basis, according to what qualified as “cruel or unusual” punishment in each State.

When the Eighth Amendment was drafted only a few years later, the State-specific understanding of this phrase remained. Coupled with the word “cruel,” unusual meant “harsher than is permitted by the law of long usage and custom,” i.e., the common law. And, of course, the common law differed in each State. More importantly, the framers and ratifiers of the Eighth Amendment understood that the common law differed by State.

This State-specific understanding of the term “cruel and unusual punishments” follows directly from the goals of the Anti-Federalists in demanding a bill of rights. The Anti-Federalists initially opposed ratification of the Constitution because they feared that the outsized power of the proposed new federal government would lead to both the annihilation of the States as sovereign entities and the destruction of individual rights. These two fears were intertwined: If the new central government were to create a parallel and plenary system of laws, it would render the States irrelevant and permit the central government to sidestep the common-law rights Americans had fought and died for only a few years before. These common-law rights had been enshrined in state constitutions and laws, but because the proposed federal government would be acting on the citizens directly, it would not be bound to observe those rights.

The Anti-Federalists’ solution was to constrain the new federal government in the same ways that the States constrained themselves. This meant, in some instances, calibrating federal rights to state norms, thereby preserving state power and individual rights simultaneously by retaining the primacy of the States in protecting common-law rights.  This is how the Cruel and Unusual Punishments Clause was to operate, protecting the common-law right against punishments unknown to the law by positing state law as the reference point, the benchmark of “unusualness.” “Cruel and unusual” meant “harsher than is permitted in the particular jurisdiction.”  With this understanding in place, moderate Anti-Federalists gave their assent to ratification and a Nation was born...

The people of Massachusetts have effectively turned their face against the death penalty, believing it to be an inappropriate method of punishment within their Commonwealth.  Just like the Commonwealth’s conditional assent to the 1783 confederal impost, the Anti-Federalists’ assent to ratification on condition that a bill of rights be adopted preserves the Commonwealth’s authority to set the outer bounds of punishment for crimes committed entirely within its borders.  The core, irreducible meaning of the Eighth Amendment is that this judgment is the Commonwealth’s to make.

The federal government may not impose capital punishment in this case because the death penalty, in the most fundamental, literal meaning of the words, is “cruel and unusual punishment” in Massachusetts.

Of course, substantive Eighth Amendment issues are not directly in front of the Supreme Court in Tsarnaev because the First Circuit reversed the Boston Marathon bomber's death sentence on procedural grounds. But the good professor urges SCOTUS to instruct the lower courts to address this matter if it were to at some point remand the case to the First Circuit.

August 31, 2021 at 05:29 PM | Permalink


I have commented on this before, but (speaking as someone against the death penalty & open to more challenges than some) don't find this convincing as something other than something to take into consideration as a matter of discretion.

The federal government is applying the death penalty as deemed compelled by its own interests. There is no separate need here as a matter of constitutionality as a general matter to see if the specific state practices oppose the death penalty.

"The people" here is the people of the nation. I think as a matter of national appropriate punishments, they "turned" against it enough for it to be deemed "cruel and unusual." It is handed down as a whole so few times and in such an arbitrary way. But, it is not something to break down state by state in federal prosecutions.

I find these arguments overly cute, selectively using originalist arguments, but then originalism overall is dubious, so it's not too surprising. Federalism is promoted by giving states discretion to punish as they see fit w/i broad limits when prosecuting state crimes. Also, the jury can treat the same crime differently in this context in the sentencing phase depending on local sentiments. This too is a way local opposition can be advanced.

The 8A is not this fine tuned even if there is a good policy reason for it.

Posted by: Joe | Aug 31, 2021 6:22:36 PM

"Cruel" and "Unusual" should both be assessed in relation to the crime. In Tsarnaev's case, he helped kill people and helped cause 17 people to lose limbs. For a crime of that magnitude, the DP is neither cruel nor unusual.

Posted by: William C Jockusch | Sep 1, 2021 8:10:24 AM

Agree with Joe. Maybe it wasn't the same as the originalism exactly, but I thought a similar argument was tried with Gary Sampson vis-a-vis no state DP being available in MA.

I'm a no DP absolutist, so as Judge Thompson pointed out, it would just mean D.T. (interesting that he shares those initials with another [in]famous person) rots in prison until the end of his days.

That said, I believe in rehabilitation and restorative justice in appropriate cases, and I don't think D.T. is necessarily a lost cause. Especially since he wasn't even 20 at the time of his crimes. (If you put the Waltham murders partially on him too, well, he was even younger then.) But realistically if DP is off the table, then you're looking at life for him.

Posted by: kotodama | Sep 1, 2021 10:58:55 AM

The last part of kotodama's comment is well taken.

Many might figure we should just leave these people in prison to rot, but prison is not only just that. Rehabilitation and some sort of repayment of one's debts (in a matter of speaking) is possible for those in prison.

How this is done, I will leave to the experts here, but suffice to say people have said a lot about the issue, including in fictional works.

BTW, I join the critics of Prof. Tribe's op-ed and later tweet regarding the murderer of RFK. Just to toss that in, which might be notable as well for readers of this blog.

Posted by: Joe | Sep 1, 2021 2:07:30 PM

While this issue is important and interesting, it fails to deal with the many violations of fairness and justice in the defendant's representation.

The conviction should have been overturned and new counsel appointed. There is substantial evidence for that ruling.

Many think that the Court rejecting the death penalty on procedural grounds was a tepid and cowardly move to negate the sentence while not negating the conviction.

Most of us concur with that assessment. The defendant deserves a retrial. With competent counsel. The result would most likely result in acquittal.

Thus the point here would be moot.

Posted by: restless94110 | Sep 3, 2021 3:35:15 PM

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