Making Sense of Cruel and Unusual Punishment: A New Approach to Reconciling Military and Civilian Eighth Amendment Law

• Author: Captain Douglas L. Simon
• Pages: 04

MAKING SENSE OF CRUEL AND UNUSUAL PUNISHMENT: A NEW APPROACH TO RECONCILING MILITARY AND CIVILIAN EIGHTH AMENDMENT LAW

CAPTAIN DOUGLAS L. SIMON*

It cannot be helped, it as it should be, that the law is behind the times.1

1. Introduction

   The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."2 The drafters of the amendment did not write these clear prohibitions in a vacuum. Early on, the Founding Fathers recognized the past abuses the Crown inflicted on the English people.3 Torture and barbaric treatment "were notoriously applied" to the accused and guilty alike, with those receiving a conviction from the many English offenses most likely sentenced to death.4 From this history lesson, the Founding Fathers borrowed England's prohibition against cruel and unusual punishment found in the English Bill of Rights of 1689.5 In borrowing the cruel and unusual language, the Framers intended to prohibit

   objectionable and barbaric modes of punishment.6 Since the amendment's ratification in 1791, the Supreme Court construes the Cruel and Unusual Punishment Clause to require a per se prohibition against modes of punishment that inflict "the unnecessary and wanton infliction of pain."7 Yet the Supreme Court interprets the Clause to mean much more than dispelling punishments that were barbaric and cruel at the time of the English Bill of Rights' promulgation. The Court's interpretation has led to recognition that punishments that are excessive, or disproportionate to the crime, also violate the Eighth Amendment.8

   Much of the development of Eighth Amendment law is an extension of the death penalty debate and the death penalty's proper role in a civilized society.9 The Court, in construing the appropriateness of the death penalty, fashioned a legal doctrine to guide the death penalty's decision making. This doctrine, which the Court refers to as "evolving standards of decency," is an elastic, progressive doctrine that assumes change.10 This doctrine is essentially a three-pronged analysis.11 First, the Court surveys the text and legislative history of the Eighth Amendment to ascertain whether a particular mode of punishment was so barbaric at the time of the amendment's ratification that it is inherently unconstitutional today.12 Second, if the Court is unable to discover the

   Framer's intent on a mode of punishment, the Court considers whether a particular punishment comports with the norms and values of contemporary society.13 To determine society's mores on the death penalty, the Court considers two crucial indicators: laws enacted by state legislatures and jury decisions.14 From this survey, the Court attempts to decide whether a "national consensus" exists on the acceptability of the death penalty for the type of crime or for a distinct class of offenders.15

   In addition to the legislative and jury components, the Court relies on public opinion polls, international opinion, and comments by professional associations.16 Individually and collectively, these societal measurement tools are controversial among some Court members. In particular, the concern of some members rests on whether it is constitutionally appropriate for these components to enter into the Court's cruel and unusual analysis.17 Third, the Court brings its own judgment to bear on the acceptability of capital punishment.18 In doing so, the Court looks to whether a particular punishment meets societal goals, like retribution and deterrence.19 The Court's interest in bringing its own independent judgment to bear ensures the challenged punishment comports with "human dignity."20 Among some justices critical of the third prong, it merely represents a convenient method for invalidating death penalty legislation.21 Nevertheless, the doctrine as a whole is well received by the Court and contributes extensively to the development of Eighth Amendment jurisprudence.

   An intellectually rich doctrine, shortcomings do still exist. The doctrine's exposure to civilian courts is apparent through more than one hundred years of history. In military jurisprudence, the doctrine's application is scant. With a few exceptions, the doctrine's applicability occurs only in military cases discussing conditions of confinement.22

   The result is a murky, doctrinal gap that fails to address the full range of constitutional protections against cruel and unusual punishment that must apply in some way within the military. It is unsettling that a framework

   does not exist to reconcile the divergent interests of military and civilian Eighth Amendment law.

   There is a new approach. The intent is to harmonize the competing interests of civilian and military Eighth Amendment law, yet still maintain a criminal justice system responsive to the military's needs. In this light, this article advocates a two-track system that seeks to bridge the doctrinal gap between civilian and military courts in applying evolving standards of decency. Track one applies civilian Eighth Amendment substantive law. This track recognizes that various crimes and punishments within the civilian criminal justice system are similar to offenses and punishments found within the military's criminal justice system.23 Like offenses and punishments should follow one coherent legal regime that maintains consistency and fairness to the accused. Track two recognizes that the military contains offenses and punishments which share no civilian counterpart and, therefore, a different standard should govern.24 That is, because the evolving standards of decency doctrine relies on an index of state legislatures to determine the appropriateness of punishment-indeed, the state legislative index is the doctrine's primary component-its application to the military is doctrinally unworkable.25 State legislatures do not share the military's laws for unique crimes and punishments, especially in times of war, and therefore, it is inappropriate-if not impossible-to fairly gauge the sentiments of society against a method or form of punishment. For that reason, this article advocates for a rational basis application when the offense or punishment is unique to the military.

   Part II of this article provides the historical backdrop for the doctrine's creation, development, and further refinement. This section examines the doctrinal components, primarily considering death penalty cases challenged on excessiveness grounds, and also addresses methods of punishment perceived as barbaric. In addition, this section examines the doctrine's relevancy to noncapital disproportionality challenges and conditions of confinement. Part III considers the Eighth Amendment's application to the military, reviewing its history and the drafting of Article 55 of the Uniform Code of Military Justice (UCMJ). Part IV addresses the problems with applying a pure evolving standards of decency analysis to the military. This section offers a framework to

   harmonize the military's interest in assuring that it can effectively punish Soldiers who commit the vilest of crimes, with the civilian court's interest in ensuring that the protections of the Cruel and Unusual Punishment Clause are available to all. In particular, Part IV explores the feasibility of applying a two-track framework that is flexible and doctrinally logical in incorporating evolving standards of decency to both civilian and military life. Part V concludes by emphasizing that military and civilian courts need an Eighth Amendment framework that is flexible enough to meet the military's needs during war and peace.

2. Evolving Standards of Decency: A Brief History

   In Supreme Court jurisprudence, evolving standards of decency began its doctrinal development in Weems v. United States.26 Before Weems, the Court interpreted the Cruel and Unusual Punishment Clause only to prohibit modes of punishment that were barbaric and cruel.27

   Weems changed this; in Weems the Court addressed whether fifteen years imprisonment at hard labor constituted excessive punishment for petty theft.28 The defendant maintained a position as a disbursing officer with the Bureau of Coast Guard and Transportation located in the Philippine Islands.29 While in this position, the defendant falsified a "public and official document,"30 which led to the unlawful conversion of 612 pesos.31 Upon conviction by a Philippine court, the defendant received a sentence of cadena temporal.32 The defendant received fifteen years

   imprisonment, hard labor, confinement to chains at the ankles, lifetime surveillance, and a fine of 4,000 pesetas.33 In reaching its decision, the Supreme Court searched for the meaning of the Eighth Amendment's Cruel and Unusual Punishment Clause, considering whether it applied, if at all, to punishments that may be excessive, but were not "inhuman and barbarous, and something more than the mere extinguishment of life."34

   In its inquiry, the Court found that the protection from cruel and unusual punishment did indeed go beyond simply the method of punishment, but the excessiveness of punishment as well.35 Justice Joseph McKenna, for the Court majority, identified the progressive nature of the Eighth Amendment, stating "[t]he clause of the Constitution, in the opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as the public opinion becomes enlightened by a humane justice."36 This interpretation permitted this and successor Courts to consider cruel and unusual punishment challenges that are not fixed to an Eighteenth Century definition of punishment-like whipping, burning at the stake, disemboweling, or breaking on the wheel-but that are simply excessive.37 In other words, Weems broke new ground in establishing an Eighth Amendment jurisprudence that did not concern itself with simply the method of punishment (the Clause's traditional interpretation), but whether the Clause...