INTRODUCTION II. COLONIAL RECEPTION III. THE EIGHTH AMENDMENT IV. ADOPTION IN THE STATES V. IMPLICATIONS FOR INTERPRETATION VI. WHAT THE ENGLISH BILL OF RIGHTS DID VII. BLACKSTONE'S OPINION AND ITS AMERICAN RECEPTION VIII. THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF 1791 IX. THE CONSTITUTION'S PROHIBITION OF BILLS OF ATTAINER X. THE FORK IN THE ROAD: HOW THE NONDISCRIMINATION PRINCIPLE LOST PROMINENCE XI. IS THE EIGHTH AMENDMENT A CHAMELEON? XII. THE REQUIREMENT OF NONDISCRIMINATION XIII. DECIDING ATKINS AND EWING INTRODUCTION
What is the Eighth Amendment really about? Members of the Supreme Court in two recent cases offered alternative visions of the Amendment's function. (1) According to Justice John Paul Stevens, "The Eighth Amendment succinctly prohibits '[e]xcessive' sanctions." (2) The Amendment uses this term twice: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (3) Dissenting from the Court's vindication of California's "three-strikes" law, Justice Stevens observed: "It 'would be anomalous indeed' to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment." (4) Justice Antonin Scalia, on the other hand, understands the Cruel and Unusual Punishments Clause of the Eighth Amendment to condemn "only certain modes of punishment." (5) In particular, the Amendment prohibits two categories of punishment: "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," (6) and "modes of punishment that are inconsistent with modern 'standards of decency,' as evinced by objective indicia, the most important of which is 'legislation enacted by the country's legislatures.'" (7) Consequently, Justice Scalia dissented from the Court's conclusion that imposing death sentences on mentally retarded offenders violates the Amendment. (8)
Both Justices miss the principle at the Eighth Amendment's core. Neither the Stevens vision of an "excessiveness" amendment, nor the Scalia vision of a "vicious methods" amendment, adequately fits the Amendment's history any better than it fits the Amendment's language. And that language invites an historical inquiry. It is the text of the Amendment that seems "anomalous indeed." If that text were meant simply to condemn excessive punishment, why does it not say so? The term "excessive" was, alter all, on the tips of the drafters' tongues, for they used it in respect to bail and fines. Why was it not deployed more generally? On the other hand, if the Cruel and Unusual Punishments Clause were about vicious methods of punishment, why would the Amendment condemn excessiveness at all? Why, in particular, would excessiveness in fines warrant a special condemnation from which excessiveness in other acceptable methods of punishment was exempted?
History resolves the Eighth Amendment's linguistic anomaly by revealing that the Amendment was meant to address a problem distinct from either excessive punishment or vicious punishment. That problem was discriminatory punishment. The principle that lies behind the Eighth Amendment is nondiscrimination. The Eighth Amendment is a founding-era expression of equal protection. Its specific provision concerning punishments was a forerunner to the sweeping generality of the Fourteenth Amendment's Equal Protection Clause. The Court implicitly recognized as much in Furman v. Georgia when condemning broad judicial discretion to impose the death penalty. (9) In the words of Justice Douglas:
The high service rendered by the "cruel and unusual" punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups. (10) In an uncharacteristic dalliance with originalism, Douglas observed:
There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature. (11) In adopting the 1689 Bill of Rights, the English Parliament sought to condemn punishments that were illegal because they were contrary to the common law. Punishments that departed from the common law, that is, punishments that departed from the historic custom of the community, could be described as "illegal" or as "unusual." In the England of 1689, those two terms were used interchangeably. But in adopting the Bill of Rights, the English Parliament sought to condemn only punishments that departed from the common law in the direction of greater severity. In other words, they sought to condemn punishments that were harsher than the common law allowed, and thus cruel and unusual. (12)
A century later, the American founders took this language of their English heritage and applied it as a constitutional limitation upon the validity of federal action. Through the Eighth Amendment and its state counterparts, they sought to condemn whatever the English prototype condemned. Those among them who had read Blackstone, and thus understood what the 1689 Bill of Rights condemned, would have known that the provision made the common law an objective referent for which punishments were unusual (illegal at common law) and cruel (harsher than the common law allowed).
"Unusual" was a synonym for "illegal" at common law because the common law doctrine of precedent insisted that judicial decisions could succeed in articulating law if and only if they served an underlying principle of moral--and therefore legal--equality among litigants. The principle that underlay the doctrine of precedent was nondiscrimination, that is, of treating like cases alike. A leading rationale for the common law method was avoidance of immoral discrimination. If a particular punishment was distinguishable from its predecessors for good reason, then it reflected an evolved understanding of the common law rather than a departure from the common law. But to impose on an offender a punishment different from that imposed on other offenders for no good reason--that is, either without reason or for a morally insufficient reason--was to depart from the common law and thus to act unusually and illegally.
To call a punishment "unusual" was to call it immorally discriminatory. To call a punishment "cruel and unusual" was to call it immorally discriminatory in the direction of greater severity. Understanding the Cruel and Unusual Punishments Clause as a prohibition of discrimination most faithfully translates the historic text into a modern context. (13)
Reading the Cruel and Unusual Punishments Clause with the rest of the Eighth Amendment confirms the propriety of a "no-discrimination" understanding. The common law of 1689 afforded courts broad discretion in determining amounts to set for bail (in cases where bail was appropriate before conviction) or to impose as fines (in cases where fines were appropriate as punishment). For bail to deter a person charged from absconding before conviction and for a fine to deter a person convicted from re-offending, the amounts of each must be calibrated to the financial circumstances of the person. During the 1670s and 1680s, however, the Court of King's Bench repeatedly abused its discretion by setting bail and imposing fines of more than the offender could pay. In this way, the court effectively imposed indefinite prison sentences upon political opponents of the Stuart monarchs. (14) The Eighth Amendment's prohibition of excessive bail and excessive fines thus contemplated an objective referent for what counted as excessive. Where the circumstances of the case were such that bail or a fine was appropriate, the court's jurisdiction to offer bail or to impose a fine was not to be exercised through terms that operated as an indefinite prison sentence. Where a court exercises its bail or fine jurisdiction to set bail or to impose a fine that cannot be paid, its action is objectively excessive and that excessiveness invites an inference of immoral discrimination.
In the case of other punishments, the language of the Eighth Amendment in its original context also identified an ostensibly-objective criterion for condemnation. It did not simply condemn "excessive" punishments, for it was not meant to authorize a clash of subjective impressions. Instead, it condemned punishments unknown to the common law for the offense of conviction. The original language presupposed that the common law both defined offenses and provided standard sentences or standard ranges of sentences for conviction. Harsher sentences than the common law allowed were cruel and unusual. The sentences particularly on the drafters' minds did not involve intrinsically unacceptable methods of punishment, but were tailor-made combinations of punishments that were harsher than the common law allowed. The person-specific character of those punishments suggested that they were discriminatory for no morally sufficient reason. Applying this no-discrimination understanding of "cruel and unusual punishment" to the validity of legislation that prescribes punishments, and to the validity of judicial sentencing under statutory discretions, is akin to applying the Equal Protection Clause of the Fourteenth Amendment to those governmental acts.
Through the Eighth Amendment's guarantee of no discriminatory punishments, the American founders enshrined a hallowed phrase of their English heritage. They were not seeking to create some new and novel limitation on government power, a fact that helps to explain why they recorded no concern with the provision's potential overlap with due process in...
The antidiscrimination Eighth Amendment.
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