Modest musings on Eighth Amendment originalism two decades after Ewing v California

In part because adult offenders sentenced to prison terms have almost no chance of prevailing on an Eighth Amendment Cruel and Unusual Punishment claim, I overlooked that last month marked the 20th anniversary of the two "recent" SCOTUS cases that solidified this jurisprudential reality.  Ewing v. California and Lockyer v. Andrade, decided together in March 2003, upheld the constitutionality of two extreme prison sentences under California's Three Strikes Law, and this new Balls and Strikes commentary by Jay Willis laments the rulings.  The full headline of the B&S piece highlights its themes: "How Two Supreme Court Cases Made 'Cruel and Unusual Punishment' Meaningless: Two decades ago, the Supreme Court had the chance to stop lawmakers from sentencing people to life in prison for petty theft. It decided to look the other way."  Here is part of the discussion:

Many Supreme Court cases are policy disputes disguised as esoteric legal questions, but the sleight-of-hand is never clumsier than when the justices spend page after page attempting to divine what “proportionate” means.  In Lockyer and Ewing v. California, which the Court decided the same day, most of the justices agreed that a sentence could be cruel and unusual; they just disagreed about how cruel or unusual it must be to merit intervention.  (I say “most” because Justice Clarence Thomas wrote separately in Ewing to opine that the Eighth Amendment contains no “proportionality principle” at all, thus leaving open the possibility that lawmakers could one day impose even longer prison sentences for stealing even fewer children’s movies, if they were so inclined.)

The issue in Lockyer and Ewing is, in other words, fundamentally one of policy.  And although O’Connor frames her conclusions as deferential to the discretion exercised by lawmakers, the opinions make clear that she agreed with their choice.  Much of her rhetoric would not be out of place in the stump speech of any mid-90s candidate straining to portray himself as tougher on crime than his opponent: Three-strikes laws, she wrote in Ewing, target “career criminals” who “must be isolated from society in order to protect the public safety.”  Ewing’s sentence, she continued, was the product of a “rational legislative judgment…that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.”

Andrade didn’t lose because O’Connor’s Eighth Amendment analysis was “better,” in any meaningful sense of the word.  Andrade, and millions of other people facing unconscionable prison sentences, lost because the conservative justices had the votes to infuse constitutional law with their own feelings about crime and punishment.

I am disclinined in this medium to robustly debate this particular accounting of Ewing and Lockyer, but I do think it is timely and worthwhile to note here that the Supreme Court's robust turn toward originalism is based in part on asserions that it takes judges' "own feelings" out of constitutional interpretation.  Indeed, Justice Thomas in Ewing did not reference any "policy" for his vote, but rather cited to Justice's Scalia's prior originalist analysis in Harmelin v. Michigan to ground his claim that the Eighth Amendment contains no proportionality limit on prison sentences.

And yet, as revealed by the diverse ways in which originalism is being applied in Second Amendment cases since Bruen, the notion that originalism takes judges' "feelings" or policy views out of constitutional interpretation seems quite suspect.  Moreover, the work of Prof John Stinneford, the leading scholar on the original understanding of the Eighth Amendment, explains why and how Eighth Amendment originalism could and would place some limits on adult offenders sentenced to prison terms.  (See, eg, The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation and The Original Meaning of 'Cruel'.)  Other notable scholars, such as Profs Laurence Claus and Michael Mannheimer, have also developed robust arguments that a sound originalist approach to the Cruel and Unusual Punishment clause would and should restrict at least some adult prison sentences. (See, eg, The Antidiscrimination Eighth Amendment and Harmelin's Faulty Originalism.) 

So, to round these modest musings on Eighth Amendment originalism, I am deeply disappointed that SCOTUS has now gone two full decades since taking a serious look at any adult prison sentences under the Cruel and Unusual Punishments clause.  (Of course, during this period, we have seen an important juvenile sentencing jurisprudence develop along with the seemingly never-ending array of capital cases.)  The work of multiple scholars should undercut a view that, with more conservative judges taking a more originalist approach to the Constitution, the Eighth Amendment is sure to provide less protetion to defendants.  Any number of 21st Century rulings have shown how originalism can provide some defendants some more protections under the 2nd (Bruen), 4th (Jones) and 6th (Blakely) Amendments (and others).  Seems like it is past time for the 8th Amendment to finally get some (pro-defendant) originalist love.   Of course, I am not holding my breath, though that's because I see judges' "feelings" and policy views to be inevitably part of any approach to challenging and debatable legal issues.