Immoral Maxim #8: Cruel & Unusual Punishment

Maxim # 8: Cruel and Unusual Punishment: Rigor Mortis in Scalia’s Constitutional Prospecti

Amendment VIII: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
(Ratified Dec 15, 1791)

“Since it has been the traditional practice of American courts to leave punitive damages ... to the discretion of the jury; and since in my view a process that accords with such a tradition and does not violate the Bill of Rights necessarily constitutes "due" process; I would approve the procedure challenged here without further inquiry into its "fairness" or "reasonableness." Antonin Scalia in Pacific Mutual Life Insurance Co. v. Haslip et al., (1991)

“A punishment which is considered fair today may be considered cruel tomorrow... More than any provision in the Constitution, the prohibition of cruel and unusual punishment depends largely, if not entirely, upon the humanitarian instincts of the judiciary. We have nothing to guide us in defining what is cruel and unusual apart from our own conscience.” Justice Frank Murphy, Louisiana ex rel. Francis v. Georgia, Texas, Florida (1947)

I myself very much appreciate the spirit of Justice Murphy’s comment in Louisiana ex rel. Francis (1947). However, I think it would be more accurate to say that in 8th Amendment cases the Court often has to carefully and conscientiously consider the contrary implications of the Constitutional text, our legal precedents, and the country’s history. All of these sources of judicial reasoning — text, precedent, and history — are replete with contrary and controversial implications. And, in these instances, the decisive component of a judicial decision may very well be — as it should be — the judge’s informed conscience. As a further realistic caveat, it should be remembered that judges are generally and constitutionally hesitant in temperament and conservative in practice. There have always been a few judges — John Marshall Harlan, Brandeis, Brennan, and Thurgood Marshall — who have been ahead of the body politic, but as a class judges tend to be both temperamentally and intellectually either moderate or conservative. With these caveats, let us bear down directly upon Scalia’s interpretation of the Eight Amendment. We deal here with the general issue of cruel and unusual punishment as it effects both capital and non-capital punishment. However, we will deal with some additional particulars of death penalty jurisprudence in Repartee #10.

Scalia’s opinions in Eight Amendments are guided ab initio by four glosses which he places upon the Constitutional words. These four glosses are inherently narrowing, conservative, controversial, historically suspect and, at times, — I would argue — terribly mistaken. Scalia argues and insists that (1) the phrase “cruel and unusual” is to be read as “both cruel and unusual,” (2) the term “unusual” is to be read as a close synonym for “illegal,” (3) jury discretion is justiciably unreviewable, and (4) excessive or “disproportionate” punishments are not Constitutionally “cruel and unusual.” In addition to these four glosses, Scalia’s reading of our own eight Amendment is guided primarily by a historical analysis that is singularly focused upon the case of one Titus Oats and the English Parliament's reaction to this case. There appears to be little doubt that this case was indeed a spur to the political reforms which resulted in the English Bill of Rights of 1689. That the English Parliamentary act of 1689 represents, however, a fixed national consensus upon the meaning of the term “cruel and unusual” in the United States of 1791 — when the country’s jurisprudence was in a state of flux — strains my imagination.

Gloss #1 - Is “cruel and unusual” an exact synonym for “both cruel and unusual?”

To ask the question is to answer it. In both 1791 and in the early 21st Century, the word “both” implies that two independent requirements must be met before declaring a punishment “cruel and unusual.” As a first step, we note simply that in 1791 the Framers did not place the word “both” in the Constitution and since 1791 there has never been a significant faction, minority, or majority interested in a movement to alter these words. What we can say is that if a punishment is “both cruel and unusual”, then it is indeed “cruel and unusual.” The extent to which a punishment is “cruel and unusual” when it is “either cruel or unusual” or when it is “cruel and perhaps unusual” or when it is “unusual and (perhaps) cruel” are matters which have never been definitively defined either legally or linguistically. By imposing this bright-lined rule upon the text, Scalia has, of course, imposed upon the Constitution his own subjective methodological approach. Practically speaking, with his interpretation of these three key words he would remove an important class of judicial malfeasance from even the possibility of judicial review.

Gloss #2 - Is “unusual” a close synonym for “illegal?” [F 8-1]

In this case, to ask this question is only the beginning of an answer to the question. Indeed, the term “cruel and unusual” was a response to some startling outrageous behavior of the 17th Century which could be and was deemed to be illegal by English citizens when they adopted the English Bill of Rights. However, the continuing use of the term into the Founding era and into our own epoch has been one which has never been and is not now a narrowly defined term — which is why all justices end up giving the term their individual, even idiosyncratic, construction. One of the most important discussions of the term was given by Marshall in his Furman (1972) concurrence. First, he notes that the British had initially considered the word “illegal,” but had rejected it as too narrow. Secondly, he notes that many of the Founders explicitly considered the Eight Amendment to prevent torture and other excessive punishments (legal or no!!). Thirdly, and perhaps most importantly, Marshall notes that the terminology is somewhat inadvertent — the Founders and Framers were unable to find easily defined and agreed upon terminology and simply left us with an inherently imprecise terminology. It is a terminology which today has life almost exclusively as a legal term which judges, lawyers, and laymen alike must interpret as they are led by their knowledge, mind, and heart. Again, practically speaking, Scalia’s narrowly idiosyncratic reading of this key word would place an important subset of judicial malfeasance beyond review. In my own mind the idiosyncratic nature of Scalia’s opinion is not per se problematic. What is problematic are the hypocritical accoutrements of his insistence that there was ever a generally agreed upon and determinate meaning associated with the Eighth Amendment.

Gloss #3 - Is a jury’s discretionary judgment in “cruel and unusual punishment” cases “necessarily” beyond review?

In the Maxim #8 above, Scalia asserts that his legal philosophy binds him to follow whatever the jury has decided — much like the 600 British soldiers who blindly followed their orders into the jaws of death. For an injured petitioner who thinks the Eighth Amendment might arguably shield him from a unusually cruel jury verdict - think again if you seek Scalia’s vote. He has already washed his hands. [Special Footnote VIII-1] In one case, Ewing v. California (2003), Scalia voted with a Court majority to uphold a 25 year to life sentence for the theft of 3 golf clubs under California’s ‘three strikes’ laws. In another case, Harmelin v. Michigan (1991), Scalia wrote the Court Opinion in upholding a mandatory term of life in prison without possibility of parole for possession of slightly more than 650 grams of cocaine. And, as we will discuss further in Repartee #10, Scalia almost always upholds death penalty determinations by juries.
But there is a little bit more here than meets the eye. In Scalia’s dissent in Atkins v. Virginia (2002) Scalia lamented the Court’s disrespect for the jury’s authoritative character and quoted an articulate defense of the jury trial by one Matthew Hale written over 300 years ago. “Well,” I said to myself, “I don’t think a jury trial alone is necessarily the only way to determine a just result and I certainly don’t think the opinion of a British judge written two centuries before the American Bill of Rights was adopted is dispositive — but he certainly wrote well and presents an idea which still resonates with us today. But just who is this Matthew Hale, the proponent of the Superior English Way of adjudicating?” So I went to Wikipedia and I found a little more than I had expected. Among other items listed in Hale’s bio, I discovered that Judge Matthew Hale had presided over the trial and execution of defendants accused of witchcraft...

Instead of an uncritical paean to English jurisprudence, Scalia would have done well to heed Madison’s words on the benefit of an independent federal judiciary appointed to positions with lifetime tenure:

“ If ... [the provisions of a Bill of Rights] are incorporated into the constitution, independent tribunals of justice [e.g., Federal judges] will consider themselves in a peculiar manner the guardians of those rights.”
(Madison, introducing the Bill of Rights, June 8, 1788)

If Antonin Scalia thinks he is absolutely bound by a jury’s determination of either fact or appropriate punishment, then — in instances of deep-seated public prejudice — he is no longer a judge, but, like the Right Honorable Matthew Hale, he has become a shaman.

Gloss #4 - Can excessive or “disproportionate” punishments be Constitutionally permitted?

In Harmelin v. Michigan (1991) and in a concurrence accompanying the Ewing v. California (2003) case mentioned above, Scalia further argues that there is no constitutional restraint implicated by arguments which say punishment should be “proportional”. Scalia uses various historical practices to buttress his defense of a standard which says in essence that the convicted felon should receive his “just deserts — and then some.” The tradition that the punishment should be commensurate with the crime is found as early as the Magna Carta (1215), in debates during the ratification era, and in subsequent decisions of our Supreme Court [e.g., Weems v. U.S. (1910, Trop v. Dulles (1958), Solem v. Helm (1983)]. Indeed, one doesn’t really need to travel that far to get one’s clue about the meaning of cruel and unusual -- the Eighth Amendment begins by restraining both “excessive bail” and “excessive fines” sets the linguistic stage or, more to both the linguistic and legal point, places an anticipatory “penumbra” for utilizing our common sense understanding of “cruel and unusual.” [F2] In other contexts, of course, Scalia is quite prompt in rejecting “excesses.” In County of Riverside v. McLaughlin, (1991) Scalia argued that, presumptively, 25 hours was too long to hold a prisoner without bring him before a magistrate. [F3] [Special Footnote VIII - 2]

According to the American Heritage Dictionary in my home, “Cruel implies both disposition to harm and satisfaction in or indifference to suffering.” Justice Scalia may indeed have a good mind and a witty pen; so far, however, his judicial work has usually been characterized by a very narrow moral imagination markedly indifferent to the genuine consequences of his words and deeds. With some important exceptions, Scalia has not used that power on behalf of those individuals caught in a “justice” system that convicts, imprisons, and executes a large number of persons on standards that are de facto closer to “probable cause” than the formal “Guilty beyond a reasonable doubt.” Scalia does not believe that we should apply our common understanding of cruelty to the facts of the case. Rather he asserts that we are legally bound to interpret ‘cruel and unusual’ as, in effect, meaning an acceptance of almost any practice which we can find in the historical record of the colonies and new republic of the late 18th Century. Scalia’s interpretation of the 8th Amendment would fit well within the Code of Hammurabi (1790 BC). However, in my mind his opinions lack both the Founder’s dedication both to “a decent respect to the opinions of mankind” and their commitment “to establish justice, insure domestic tranquility... and secure the Blessings of Liberty.”

FOOTNOTES (Repartee #8):
[Footnote 8-1] Scalia does from time to time allude to past barbarities which he would (probably) vote to overturn, but these allusions usually have very little relevance to the classes of cases which he considers as a Supreme Court justice.
[Footnote 8-2] See Appendix D - Crime and Punishment: Reason versus Revenge” for further discussion.
[Footnote 8-3] This particular case is discussed further in detail in Appendix A - Commendations for Antonin Scalia.

{Special Footnote VIII - 1} And Pilate seeing that he prevailed nothing, but that rather a tumult was made; taking water washed his hands before the people, saying: I am innocent of the blood of this just man; look you to it. Matthew 27: 24 (Douay-Rheims Bible)

{Special Footnote VIII - 2} “And the LORD said. “You pity the plant for which you did not labor, nor did you make it grow, which came into being in a night. And should not I pity Nineveh, that great city, in which there are more than a hundred and twenty thousand persons who do not know their right hand from their left, and also much cattle.” Jonah 4: 10-11. (RSV)

CASES CITED (Repartee #8):
Atkins v. Virginia, 535 U.S. 304 (2002) Scalia, Dissent
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) Scalia, Dissent
Ewing v. California, 538 U.S. 11 (2003) Scalia, Concurrence
Furman v. Georgia, 408 U. S. 238 (1972)
Harmelin v. Michigan, 501 U.S. 957 (1991) Scalia, Court Opinion
Louisiana ex rel. Francis v. Georgia, Texas, Florida, 329 U.S. 459 (1947)
Pacific Mutual Life Insurance Co. v. Haslip et al., 499 U.S. 1 (1991) Scalia Concurrence
Solem v. Helm, 463 U.S. 277 (1983)
Trop v. Dulles, 356 U.S. 86 (1958)
Weems v. U.S., 217 U.S. 349 (1910)