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October 19, 2023
Might a real originalist turn in Eighth Amendment jurisprudence help many more criminal defendants than it would hurt?
The question in the title of this post is prompted by this new Reuters article about a recent speech delivered by Judge Thomas Hardiman. The press piece is headlined "US appeals judge urges new standard on 'cruel and unusual' punishment," and here are excerpts:
A federal appeals court judge on Wednesday argued that the conservative-majority U.S. Supreme Court would have grounds to revisit its interpretation of the U.S. Constitution's prohibition on cruel and unusual punishment and "return to the text and original meaning of the 8th Amendment." In a speech delivered at Harvard Law School, U.S. Circuit Judge Thomas Hardiman, an appointee of Republican former President George W. Bush on the 3rd U.S. Circuit Court of Appeals, argued that the high court should abandon a decades-old legal test for deciding if a punishment was unconstitutional.
The Supreme Court in a series of cases starting in 1952 interpreted the 8th Amendment's prohibition on cruel and unusual punishment based on what opinions described as the "evolving standards of decency that mark the progress of a maturing society." But Hardiman told the Harvard chapter of the conservative Federalist Society that the standard is a "contrived ratchet" that has fueled a "runaway train of elastic constitutionalism" giving judges too much power to invalidate laws in favor of defendants. "Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments," he said. "The only constant is that more and more laws adopted by the people's representatives have been nullified."
Supreme Court rulings that have relied on that standard include one in 2005 barring capital punishment for offenders who were under 18 when they committed crimes and a 2008 decision striking down a Louisiana law allowing the death penalty for the rape of a child when the victim did not die. The court also relied on that standard in a 5-4 decision in 2012 that declared unconstitutional mandatory sentences of life in prison without the possibility of parole for people under age 18 convicted of murder....
The ideological split among justices has since changed, and thanks to three of Republican former President Donald Trump's appointments the court.... That newly constituted court in 2021 put an end to the court's run of decisions that put limits on life sentences without parole for juvenile offenders, making it easier for states to impose such sentences.
The court did so without mentioning the "evolving standards of decency" test, Hardiman said. He questioned whether the court would now "return to the text and original meaning of the 8th Amendment" as it has done in other areas, like the 2nd Amendment. He pointed to last year's Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, which set a new test for assessing firearms laws, saying restrictions must be "consistent with this nation's historical tradition of firearm regulation."
I have written in the past about the myriad challenges in giving meaning to the Eighth Amendment's prohibition on "cruel and unusual punishments," and I fully understand concerns and disconcert with "evolving standards of decency" test. But, realistically, as interpreted through the years by the Supreme Court and lower courts, this "decency" test has only provided real constitutional protection to only a handful of capital and juvenile murderers. As applied in modern times, 99.99% of all criminal defendants have zero chance of making a successful Eighth Amendment claim.
But if there were an originalist turn in Eighth Amendment jurisprudence, and especially if modern punishments were to be judged based on whether they were consistent with the nation's historical tradition, I could imagine a whole lot more criminal defendants having a whole lot more viable Eighth Amendment claims. In a series of articles, Professor John Stinneford has forcefully argued that sound originalism would give the Eighth Amendment considerable bite. Specifically, as the abstract of this article summarizes:
The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, longterm solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.
Professor Michael Mannheimer is another scholar who has made intriguing originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments. And I have seen various other claims and arguments in various other settings that could at least support arguments by various defendants that various modern punishments and not consistent with the nation's historical tradition.
Notably, the experience of the post-Bruen originalist jurisprudence seems to be giving lower court judges considerable power to invalidate lots of laws in favor of (gun) defendants. Consequently, I am not sure Judge Hardiman has thought this all through if he really in concerned about a constitutional jurisprudence that gives judges "too much power to invalidate laws in favor of defendants." I sincerely think a real originalist turn in Eighth Amendment jurisprudence could actually help many more criminal defendants than it would hurt, at least relatively to existing Eighth Amendment jurisprudence.
October 19, 2023 at 02:48 PM | Permalink
Comments
Seems doubtful, the only thing I believe a properly originalist reading of the 8th amendment's cruel and unusual punishments clause bars are things no one is actually interested in performing now, breaking on the wheel and other forms of gross torture. It simply has no proportionality factor at all.
I do, however, believe there is more room in the excessive fines clause and that many defendants could indeed benefit from an originalist reading there.
Posted by: Soronel Haetir | Oct 19, 2023 7:05:19 PM
There was no LWOP, no solitary confinement, no registries and a whole lot less conduct was criminalized at the time of the founding. Meanwhile, whipping, branding, cutting off ears, and placing people in the pillory were common publicly administered punishments of the colonial period. Thomas Jefferson famously proposed for Virginia in 1779 a slate of punishments that included castration for men and "cutting thro' the cartilage of her nose a hole of one half diameter at the least" for women. https://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0064#TSJN-01-02-0206-an-0002.
I think an real originalist would uphold all sort of physical punishments, but I am not sure there is much historical tradition for the extreme deprivations of liberty now so common.
Posted by: Doug B | Oct 19, 2023 8:01:43 PM
If Tom Hardiman is selling it, I'm buying. Really a smart guy.
Posted by: Bill Otis | Oct 20, 2023 4:39:46 PM
Doug,
I believe your assessment is way off.
Physical punishments were often used because they did not have the means for long term incapacitation. I suspect they would have approved it. At the very least, their silence on the issue does not mean disapproval.
Posted by: TarlsQtr | Oct 20, 2023 7:34:08 PM
To build on Doug's comments, what would the originalist query be? Is it akin to Bruen: "the government must prove the [punishment] is consistent with this Nation's historical tradition of [punishments]" such that punishments not used at the founding are verboten? If not, then what?
I'm also skeptical that being originalist necessarily means that the judiciary will be more deferential to the legislature. The 2A cases are, again, pretty on point as a counterexample.
Posted by: John Mills | Oct 20, 2023 10:44:57 PM
Like I said, I believe it is only forms of gross torture that are forbidden, more "petite" torture is just fine and that it is very much an instance of "that which is not forbidden is permitted". And that latter fully answers the question of LWOP and the like. It simply wasn't in the universe of evils the first Congress had in mind to eliminate.
Posted by: Soronel Haetir | Oct 21, 2023 1:39:47 PM
Cool. So 2A only permits prohibitions from the founding. But 8A allows any punishments unless prohibited at the founding. I’m sorry to say you are probably right about the direction the Court will go, even if it engages in an accurate historical accounting
Posted by: John Mills | Oct 21, 2023 2:49:07 PM
Actually, I believe even now that the 2nd is not being given nearly enough respect. I would, in fact, not see the 2nd even prohibiting personal possession of nuclear weapons though I would welcome an amendment to correct that deficiency.
The 1st is the amendment where I most appreciate modern jurisprudence despite that jurisprudence veering widely from what I believe an originalist understanding of that amendment would entail. That is, for the most part, I very much like modern first amendment law even though that law is very much divorced from the law of the founding.
Posted by: Soronel Haetir | Oct 21, 2023 3:01:09 PM
Great discussion, and a few quick thoughts:
1. My understanding is that historical prisons -- which we might now call jails -- were used through much of early history (Rome, colonial US) as a way to incapacitate folks awaiting trial and/or punishment. They were a known entity to the Framers, but the Framers seemingly did not want/expect them used as punishment.
2. A generation or two after the revolutionary period, the Quakers and others in PA and NY invented our "modern" approach to prison as punishment in the form of penitentiaries. I do not know the full history, but my understanding is that solitary confinement was one original key element to places like Auburn and Eastern State, though I am not aware of any use of LWOP in that era because the Quakers generally called for shorter sentences and better conditions, education in prisons, and re-entry assistance, etc.
3. The 8th Amendment prohibits "cruel and unusual punishments." Notably, it does not only prohibit torture as punishment, and so textualism would seem to suggest a lot more than torturous punishments may be prohibited. (Relatedly, we have ever more evidence that extended stays in solitary amount to torture -- so even a torture-oriented, originalist approach to the 8th A would regulate the use of solitary more than current doctrines.)
4. I am not sure how a faithful originalist would operationalize the 8th A, but that's largely because I am not sure how a faithful originalist would operationalize any of the provisions of Constitution. The post-Bruen mess in lower courts seems to me proof that "originalism" is just constitutional policy-making by another name. That view does not make me think originalist analysis (aka historical inquiry) is pointless, but it does led me to think originalism should be only one of a number of tools used for constitutional interpretation.
5. The main point I was seeking to make here is that, under current 8th A doctrine, 99.99% of all criminal defendants have zero chance of making a successful Eighth Amendment claim. If there were to be an originalist 8A turn, a whole lot more defendants might have at least a chance to get some help from some historians to constitutionally question a lot more of our current punishment practices (including, of course, in lots of gun cases, see, eg, ACCA).
Posted by: Doug B | Oct 22, 2023 8:36:00 AM
The problem that I see with an originalist approach to the Eighth Amendment is the same problem that I see with the originalist approach to the Second Amendment -- it is trying to compare apples and oranges. Many (not all, but many) of the offenses that typically get long sentences are the offenses which would have been death eligible in 1789. And, when talking about how it applies to the states, you need to consider the circumstances in 1867, by which time the use of prison as an alternative to execution had significantly grown.
I think a truer originalist approach than we are seeing in the Second Amendment cases is the originalist approach that we have seen in the Fourth Amendment jurisprudence -- a concept of a principle that is then applied to current circumstances rather than an attempt to treat the text of the Constitution as something akin to a super statute creating lists of what is allowed (in terms of restrictions on guns) or prohibited (in terms of punishments).
Posted by: tmm | Oct 23, 2023 10:35:50 AM
