Cruel and Unusual Federal Punishments

Author:Michael J. Zydney Mannheimer
Position::Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University
Pages:69-131
SUMMARY

Virtually all federal defendants who have challenged their sentences as "cruel and unusual punishment" in violation of the Eighth Amendment have failed. This is because the Supreme Court’s jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the... (see full summary)

 
FREE EXCERPT
69
Cruel and Unusual Federal Punishments
Michael J. Zydney Mannheimer
ABSTRACT: Virtually all federal defendants who have challenged their
sentences as “cruel and unusual punishment” in violation of the Eighth
Amendment have failed. This is because the Supreme Court’s jurisprudence
on cruel and unusual carceral punishments is extraordinarily deferential to
legislative judgments about how harsh prison sentences ought to be for
particular crimes. This deferential approach stems largely from concerns of
federalism, for all of the Court’s modern cases on the Cruel and Unusual
Punishments Clause have addressed state, not federal, sentencing practices.
Thus, they have addressed the Eighth Amendment only as incorporated by
the Fourteenth. Federal courts accordingly find themselves applying a
deferential standard designed in large part to safeguard the values of
federalism in cases where those values do not call for deference.
This Article’s aim is to re-discover the “pure” Eighth Amendment,
unmediated by the Fourteenth. This requires an appreciation of the role of
the Anti-Federalists in the adoption of the Bill of Rights. The Eighth
Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-
Federalists to secure individual rights through the preservation of a robust
form of state sovereignty. Moreover, the Anti-Federalists, and their political
heirs, the Republicans, rejected a “pre-realist” vision of common law in
favor of an approach that recognized the common law as varying from State
to State. Thus, the Anti-Federalists took a decidedly State-centered and State-
specific approach to the common-law rights that the Eighth Amendment was
designed to encapsulate. And the views and general outlook of the Anti-
Federalists are critical to a complete understanding of the Bill of Rights, for
it was the Anti-Federalists who won the adoption of the Bill as the price of
union.
Professor of Law, Salmon P. Chase College of Law, Northern K entucky University. J.D.
1994, Columbia Law School. E-mail: mannheimem1@nku.edu. I thank Miriam Baer, Will Berry,
Laurence Claus, Adam Gershowitz, Brooks Holland, Dan Markel, Richard McAdams, Meghan
Ryan, and George Thomas; participants at the 2011 Law and Society Annual Conference;
participants at the 2011 conference of the Central States Law Schools Association; and
participants of faculty workshops at Indiana University Robert H. McKinney School of Law and
University of Toledo College of Law for their helpful comments and suggesti ons.
70 IOWA LAW REVIEW [Vol. 98:69
This contextualized account of the ratification of the Eighth Amendment
evidences a design to limit the power of the federal government to punish
criminals to the same extent that the States have limited their own power to
punish. That is to say, whether a federal punishment for a crime is “cruel
and unusual” can be answered only in reference to the punishment for the
same offense meted out by the States. Moreover, the Anti-Federalists’ views
on the nature of the common law indicate that the appropriate comparator
is the State where the criminal conduct occurred, not the States generally.
INTRODUCTION ........................................................................................ 71
I. THE CURRENT STATE OF FEDERAL SENTENCING ..................................... 74
A. THE FEDERALIZATION OF CRIMINAL LAW ............................................ 74
B. SKYROCKETING FEDERAL SENTENCES ................................................... 78
II. APPLYING THE EIGHTH AMENDMENTS PROPORTIONALITY PRINCIPLE
TO FEDERAL SENTENCING ........................................................................ 80
A. EIGHTH AMENDMENT DISPROPORTIONALITY OF CARCERAL
PUNISHMENTS .................................................................................... 81
B. EXAMPLES OF EIGHTH AMENDMENT CHALLENGES TO FEDERAL
SENTENCING ...................................................................................... 85
1. United States v. Farley ................................................................. 85
2. United States v. Angelos ............................................................... 86
C. SQUARE PEG, ROUND HOLE: THE “GROSS DISPROPORTIONALITY
TEST APPLIED TO FEDERAL SENTENCING ............................................. 87
III. REDISCOVERING THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE ....... 90
A. ORIGINS OF THE CLAUSE IN THE 1689 ENGLISH BILL OF RIGHTS .......... 91
1. The Trial of Titus Oates........................................................... 91
2. The Nature and Character of the Common Law of
Punishment ............................................................................... 95
B. TRANSPLANTING THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE
INTO AMERICAN SOIL ......................................................................... 97
1. Adapting the Clause to Popular Sovereignty ......................... 97
2. Adapting the Clause to Dual Sovereignty ............................... 99
a. The Bill of Rights as an Instrument To Preserve State
Sovereignty ......................................................................... 100
b. The Anti-Federalist View of the Common Law ...................... 109
IV. RESUSCITATING THE ANTI-FEDERALISTS EIGHTH AMENDMENT ........... 120
A. USING STATE LAW AS A BENCHMARK FOR FEDERAL PUNISHMENTS ...... 120
B. FEDERAL INCORPORATION OF STATE LAW IN THE FRAMING PERIOD
AND BEYOND .................................................................................... 126
CONCLUSION ......................................................................................... 130
2012] CRUEL AND UNUSUAL FEDERAL PUNISHMENTS 71
INTRODUCTION
The fifty-five-year sentence imposed upon Weldon Angelos in 2004
caused quite a stir. Angelos had been convicted of three counts of possessing
a firearm in furtherance of a federal drug-trafficking crime after having
twice sold a moderate amount of marijuana to a government informant.1
Fifty-five years imprisonment was the mandatory minimum sentence for the
firearm possession counts; District Judge Paul Cassell had no discretion to
impose a lesser sentence, meaning that Angelos, twenty-four years old at the
time, would very likely die in prison.2 This mandatory sentence exceeded
what Angelos could have received in any State for the same conduct, and far
exceeded the seven years in prison he could have received in Utah, where
the crimes occurred.3 Judge Cassell called the sentence “cruel, unjust, and
irrational.”4 He openly called upon Congress to amend the mandatory-
minimum provision at issue, and upon the President of the United States to
commute Angelos’ sentence.5 An extraordinary coalition of 163 individuals
consisting of former United States District and Circuit Judges, former
United States Attorneys, and even four former Attorneys General of the
United States, filed a brief amicus curiae, arguing that the sentence
constituted “cruel and unusual punishment” in violation of the Eighth
Amendment.6 Yet both Judge Cassell in sentencing Angelos as the statute
required and the U.S. Court of Appeals for the Tenth Circuit in affirming
the sentence rejected this argument.7
Angelos is but an extreme example of the disconnect between, on the
one hand, the sense that federal sentencing in some cases has gone haywire,
and, on the other hand, the unwillingness of federal judges to find merit in
Eighth Amendment challenges to federal sentencing. In a recent survey, a
majority of federal judges indicated their belief that the mandatory
minimum federal sentences for trafficking crack cocaine and marijuana and
for receiving child pornography were excessive.8 Over forty percent thought
1. See United States v. Angelos, 345 F. Supp. 2d 1227, 1230 (D. Utah 2004), aff’d, 433
F.3d 738 (10th Cir. 2006).
2. Id.
3. Id. at 1259.
4. Id. at 1230.
5. Id. at 1230–31.
6. See Amici Curiae Brief at 1–2, United States v. Angelos, 433 F.3d 738 (10th Cir. 2006)
(No. 04-4282), 2005 WL 2347343.
7. Angelos is discussed more fully infra Part II.B.2.
8. See U.S. SENTENCING COMMN, RESULTS OF SURVEY O F UNITED STATES DISTRICT JUDGES
JANUARY 2010 THROUGH MARCH 2010, at 5 tbl.1 (2010), available at www.ussc.gov/Research/
Research_Projects/Surveys/20100608_Judge_Survey.pdf. Of the 942 federal district judges to
whom the survey questions were asked, 639 responded, a response rate of 67.8%. Id. at 3.
Concededly, the figure for crack cocaine trafficking might be lower today, given that the survey
results were collected before the effective date of the Act to Restore Fairness to Federal Cocaine
Sentencing, commonly known as the “Fair Sentencing Act of 2010,” which lowered sentences

To continue reading

FREE SIGN UP