an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Eighth Amendment's prohibition on "cruel and unusual punishments" presents a classic constitutional line-drawing problem: most punishments must be constitutionally sound, yet courts must find that at least a few punishments cross the ethereal line that demarcates a sanction as unconstitutionally "cruel and unusual." This line-drawing challenge has proven especially confounding to the Supreme Court. Reflecting the view of many commentators, Ben Wittes has described the Justices' Eighth Amendment work as "a jurisprudential train wreck." With a bit more understatement, the Supreme Court has itself admitted that "our precedents in this area have not been a model of clarity." The Court's jurisprudence has been assailed by a very broad array of commentators, including even the current Chief Justice. Complaints about the Court's work reflect a wide range of (sometimes competing) concerns: some assert that the Justices are too ready to second-guess the punishment choices of state legislatures, while others contend they show too much deference to these choices; some assail the Court's commitment to so-called proportionality review, while others call for a more robust review based on concepts of proportionality; some suggest that the Court now invests too much time and energy reviewing death sentences and too little reviewing other types of sentences.
Certain assaults on the Supreme Court's Eighth Amendment work has a flavor of shooting the messengers: critics often assail the methods and doctrines adopted by the Justices without noting the considerable methodological and doctrinal challenges posed by the prohibition on "cruel and unusual punishments." The language the Eighth Amendment is vague, opaque and permits all sorts of social constructions, which means that the interpretive technique of textualism can often produce more heat than light. Consequently, although a few Justices and commentators contend that precise punishment rules can be divined from the terms "cruel and unusual," nearly all Supreme Court decisions and most commentators move well beyond the text of the Amendment when contemplating its limits on punishments.
Similarly, because Framing Era purposes and understandings surrounding the Eighth Amendment are also vague, opaque and open to various modern post-hoc assessments, originalist interpretive methodologies can also tend to be non-starters when trying to assess a defendant's claim that a particular modern punishment for a particular modern crime is "cruel and unusual." More broadly, typical crimes and common punishments can barely be compared between the Founding Era and today. The nature, scope and goals of modern criminal justice systems are profoundly different than what the Framers experienced; pervasive modern punishments like imprisonment and probation did not even exist in colonial America, and that bygone era's ready reliance on brutal physical punishments for even minor crimes is quite discomforting to those of modern sensibilities. Perhaps unsurprisingly, the Supreme Court has robustly and repeatedly embraced what might be called "living Constitution rhetoric" in nearly all of its major Eight Amendment rulings: in the Court's own words, the Eighth Amendment "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice;" its "scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society;" and its "applicability must change as the basic mores of society change."
The practical challenges posed by the Eighth Amendment in modern times may be even more daunting and significant than the methodological ones. The reach of the criminal law and the scope of state punishment have expanded exponentially in recent decades, and lawmakers and sentencing judges are now regularly drawn to novel and ever harsher punishment for certain types of offenders. With well over a million punishments inflicted in the United States by more than 50 distinct jurisdictions each and every year, any significant constitutional restrictions on punishment options are extremely important and consequential for the nation's criminal justice systems (as well as for individual defendants, of course). The need for clear doctrinal Eighth Amendment lines is obvious, but the diversity and multiplicity of official punishments in the United States ensures that such lines will necessarily be difficult for any court to articulate effectively (let alone efficiently). Moreover, if and whenever the Supreme Court even suggests that a particular punishment may be suspect under the Eighth Amendment, many defendants will be quick to flock to courts with claims that their punishments are comparable and thus also constitutionally problematic.
Put simply, due to distinct interpretive difficulties, unique institutional pressures, high stakes for states and individuals, and the always looming reality that any rulings in favor of a defendant will engender a flood of follow-up litigation, the Eighth Amendment presents a perfect storm of challenges for constitutional adjudication. Consequently, I am inclined to cut the Justices of the Supreme Court a little slack for failing to develop a satisfying jurisprudence given the special difficulties posed by the Constitution's prohibition on "cruel and unusual punishments." Nevertheless, particularly with the pressures surrounding substantive constitutional limits on punishment steadily increasing as lawmakers and sentencing judges embrace novel and ever harsher punishment for certain offenses and offenders, it is now especially important for the Court's Eighth Amendment work to move forward soundly. But, worrisomely, in its five major substantive Eighth Amendment rulings this past decade, the Court appears to have started heading down a particularly problematic and troubling jurisprudential path.
In Atkins v. Virginia, Ewing v. California, Roper v. Simmons, Kennedy v. Louisiana, and most recently Graham v. Sullivan, the Supreme Court has repeatedly sought to articulate and justify its Eighth Amendment determinations in light of penological theories. Perhaps as a response to various criticisms of earlier substantive Eighth Amendment rulings, the Court through its rulings in these four cases appears to be expressly stating — or at least is implicitly suggesting — that the reach and limits of the Eighth Amendment are to be found within, and based expressly upon, penological purposes. In my view, this is a quite problematic turn in the Court's Eighth Amendment jurisprudence, largely because theories of punishment can readily be marshaled to justify or to question all manner of punishments. As revealed by both ancient and modern debates over theories of punishment, all penological purposes when considered collectively — and often even when considered individually — are frequently and perhaps unavoidably malleable and enigmatic, as well as often non-falsifiable and subject to pernicious biases. Moreover, it is hard believe or expect that the Supreme Court will ever be able to draw effective or predictable Eighth Amendment lines based in penological theories, or even that constitutional litigants can effectively or useful assist the Court (or lower courts) in accurately and sensibly assessing specific claims by particular defendants that their sentencing terms violate the Eighth Amendment's prohibition on "cruel and unusual punishments." For these reasons and others, it is perhaps not surprising that the Court's discussion of penological purposes in its recent cases is unsophisticated, unsatisfying and characterized more by rationalizations than by reasoning.
Though I am certain I do not have the perfect solution to all the modern Eighth Amendment challenges, I am confident there can be a better way. Specifically, I believe that the Supreme Court's Eighth Amendment jurisprudence, rather than be concerned with penological theories and policies, should be focused expressly on constitutional structures and principles. Notably, in those (too rare) moments in Atkins, Ewing, Roper, Kennedy, and Graham when the Court engages with constitutional structures and principles in its Eighth Amendment discussion, the Justices seems on firmer ground and their analysis is (usually) more satisfying. Though constitutional concepts do not (and likely will never) offer up ready or uncontestable doctrinal lines in Eighth Amendment cases, I believe a much sounder constitutional jurisprudence of punishment could emerge if the Supreme Court were to focus more on constitutional theories and less on penological theories when resolving Eighth Amendment claims. A new mode of Eighth Amendment analysis — one which draws on structural and substantive constitutional principles — might not only help court develop a more satisfying Eighth Amendment jurisprudence, but might also enable other constitutional actors to engage appropriately and effectively with the relationship between possible punishments and the Constitution's seemingly opaque prohibition on certain punishments.
Douglas A. Berman is William B. Saxbe Designated Professor of Law at the Moritz College of Law, Ohio State University. You can reach him by e-mail at berman.43 at osu.edu Posted
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