Eighth Amendment gaps: can conditions of confinement litigation benefit from proportionality theory?

• Author: Reinert, Alexander A.
• Position: Conditions of Confinement Colloquium

Introduction I. A Brief History of Eighth Amendment Interpretation A. Early Interpretations of "Cruel and Unusual" Punishments B. Modern Interpretations of "Cruel and Unusual" Punishments II. The Principles and Practices of Proportionality and Conditions Litigation A. The Dissonant Elements of Modern Proportionality and Conditions of Confinement Jurisprudence B. The Practical Ramifications of the Dissonant Elements of Conditions and Proportionality Litigation III. Bringing Proportionality Analysis into Conditions of Confinement Litigation A. The Broad Advantages of Proportionality Analysis B. Three Specific Illustrations of the Potential Link Between Proportionality and Conditions Litigation 1. Proportionality and Disciplinary Measures 2. Revisiting Deference in Conditions of Confinement 3. Proportionality and Offender-Specific Conditions of Confinement Conclusion INTRODUCTION

The Eighth Amendment, by its plain terms, prohibits "excessive" fines and "cruel and unusual punishments." (1) This Article addresses two aspects of Eighth Amendment jurisprudence: classic conditions of confinement litigation (2) and sentencing proportionality litigation, (3) both of which spring from judicial interpretation of the "cruel and unusual punishment" clause. Although these aspects of Eighth Amendment jurisprudence emerged together at the beginning of the twentieth century, they have increasingly diverged in the past forty years. This Article explores whether proportionality litigation has anything to offer prison conditions jurisprudence. In many ways, this is a strange choice of topics. Proportionality litigation in the federal courts has not been particularly successful, especially in challenging non-capital sentences. (4) Further, the critical scholarly commentary regarding conditions of confinement and proportionality jurisprudence has focused on tweaking each particular doctrinal area rather than trying to bridge the differences between these strands of Eighth Amendment jurisprudence. (5) For example, in the area of conditions of confinement litigation, commentators have suggested modifying the "deliberate indifference" test used to review conditions of confinement challenges, (6) or expanding the Eighth Amendment conditions of confinement rubric to embrace new kinds of constitutional claims. (7) In proportionality jurisprudence, scholars have argued that certain punishments should be considered unconstitutionally disproportionate, (8) or that the Supreme Court's proportionality analysis itself is flawed. (9) Some commentators have also argued for particular ways in which sentencing decisions could be informed by nontraditional considerations, without changing the contours of proportionality review. (10) This Article takes a different tack, albeit with caution. Comparing the two doctrines, I draw connections that suggest ways that proportionality analysis could invigorate conditions litigation. In particular, I argue that, with respect to twin confounding aspects of conditions litigation--deference to prison administrators and the need to establish culpable intent of prison officials--there is some value added by recognizing and effectuating some of the principles at stake in proportionality litigation. (11)

Part I of this Article begins with a discussion of the history of Eighth Amendment litigation, focusing on state and federal courts that have addressed both proportionality and conditions challenges. Part II examines the current divergence between conditions of confinement and proportionality jurisprudence. Finally, in Part III, I suggest how proportionality jurisprudence and conditions of confinement litigation might be reunited, why such a change might be positive, and what the potential drawbacks may be.

1. A BRIEF HISTORY OF EIGHTH AMENDMENT INTERPRETATION

   1. Early Interpretations of "Cruel and Unusual" Punishments

      The purposes of the Framers of the Eighth Amendment, and the meaning of the "cruel and unusual" punishment clause, have never been clear. The Amendment was based on article I, section 9 of the Virginia Declaration of Rights, which had adopted the language directly from the English Bill of Rights. (12) There has been some disagreement as to whether the Framers intended for the clause to have the same meaning as the language in the English Bill of Rights, (13) but there was little contemporaneous debate of the clause's meaning during the Constitutional Convention or during the debates over ratification of the Bill of Rights. (14)

      For all of the nineteenth century, Eighth Amendment jurisprudence was underdeveloped in the federal courts. In large part, this was because the Supreme Court held that the Amendment applied only to national, not state, legislation, (15) and that various challenges brought against particular punishments were insubstantial. (16) At most, the early federal cases suggested that the Eighth Amendment prohibited "torture ... and all others in the same line of unnecessary cruelty," (17) but that judicial deference to legislative judgments about the appropriateness of particular punishment was nearly insurmountable. (18)

      The federal government was not alone in prohibiting cruel and unusual punishments, however. Many states had adopted the same language from Virginia's Declaration of Rights, sometimes prohibiting cruel or unusual punishment instead of cruel and unusual punishment. (19) State courts interpreting their state constitution's analog (and, in some cases, precursor) to the Eighth Amendment were generally in agreement with their federal cousins. Thus, many state courts exhibited nearly absolute deference to legislative judgments regarding the length of sentences, and only hinted at the possibility that courts might intervene to find a particular mode of punishment unconstitutional. (20) In so doing, most states agreed that whether a punishment was "cruel" was judged by comparison to the punishments that were tolerated at common law, while the word "unusual" referred to how the penalty compared to the practices in other states or other "civilized" countries. (21) Thus, many state courts upheld punishments that fell within a common understanding of "cruel" or "unusual," but which did not meet the more specific requirement of having been rejected at common law. The New York State Court of Appeals's resolution of a challenge to death by electrocution exemplified this approach:

      Punishment by death, in a general sense, is cruel; but, as it is authorized and justified by a law adopted by the people as a means to the end of the better security of society, it is not cruel, within the sense and meaning of the Constitution. The infliction of the death penalty through a new agency is, of course, unusual; but, as death is intended as the immediate sequence of the mechanical application prescribed, it is not unusual in the sense that some certainly prolonged or torturous procedure would be understood to be. (22) Contrary to the uniform position of the federal courts, however, states were not unanimous. A handful of states appeared to concede that excessive punishments, even if expressed in terms of years, could violate the constitutional prohibition. (23) Further, a surprising number of state courts struck down sentences, expressed both as modes of punishment and terms of years in prison, for being excessive. In some of these cases, the punishment at issue was akin to life imprisonment without the possibility of parole. (24) But in other cases the term of imprisonment was much less, (25) and the modes of punishment found unconstitutional ranged from lashes, the ducking stool, and seizure of property. (26)

      Thus, at the end of the nineteenth century, challenges to punishments based on the Eighth Amendment, or a state constitutional analog, were rarely successful, in large part because of the deference afforded legislatures to make judgments regarding the appropriateness of particular punishments. To the extent that any doctrine had developed to evaluate the constitutionality of particular punishments, several sources of authority, none dispositive, had emerged, including the practices of the Framers, their contemporaries, other states, and other "civilized" nations, as well as the extent to which a particular punishment was repugnant to popular conceptions of justice.

      At the time that a doctrine of excessiveness or proportionality was developing in the area of just punishment, little to no constitutional challenges had been brought to the conditions under which convicted individuals were imprisoned. This should not be surprising; during the nineteenth century, even as courts considered constitutional challenges to the length of imprisonment, the conditions experienced therein were considered out of bounds. Prisoners were considered to be "slaves of the State," (27) and any rights they retained to decent treatment while incarcerated came from state and local laws, not the Constitution. (28)

   2. Modern Interpretations of "Cruel and Unusual" Punishments

      Joining the minority of state supreme courts which had struck down sentences for excessiveness, the United States Supreme Court advanced a more rigorous interpretation of the Constitution's cruel and unusual punishment clause in its 1910 decision in Weems v. United States. (29) In Weems, the Court for the first time struck down as excessive a sentence imposed by a court in the Philippines for falsifying a public and official document. (30) The trial court had sentenced the defendant, a Coast Guard official, to fifteen years imprisonment, as well as to an additional punishment known as cadena temporal. (31) Those individuals sentenced to cadena temporal were required, pursuant to statute, to engage in "hard labor," (32) were chained at the ankle and wrist at all times, and were deprived of certain rights and privileges even after release from prison. (33) Because the Court viewed the sentence as excessive, especially compared to...