Musings on Originalism, History, and the Eighth Amendment
Linda Greenhouse of the New York Times had this interesting blog post yesterday, examining Justice Clarence Thomas’ views on prisoners’ rights jurisprudence. Short version: Thomas would be happy to get rid of constitutional conditions-of-confinement litigation altogether: “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation,” says he. Empathetic though Thomas may claim to be to the plight of prisoners—at his confirmation hearings, he described watching prisoners being loaded into buses and said, “but for the grace of God there go I”—he believes that the Founding Fathers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.”
So, I was actually wondering about this the other day: What would the Founding Fathers think about an America in which one out of every 100 adults is in prison or jail? Mightn’t they think imprisonment itself is a “cruel and unusual punishment” in at least some of the cases where it’s imposed today? For example, mightn’t they think it “cruel and unusual” to sentence a man to prison for 35 years for possessing a few ounces of a narcotic plant? It’s odd, because the way the Supreme Court’s Eighth Amendment jurisprudence has evolved, the length of a sentence has been held practically off limits for constitutional challenge, while—in the development of which Thomas is so critical—the Eighth Amendment has been interpreted to cover prison conditions while serving the sentence, however long. But if Thomas is right that the Founders meant the Eighth Amendment to govern only the terms of the sentence imposed, not the conditions, then shouldn’t sentence length be well within that category? Yet, Thomas has joined opinions rejecting proportionality analysis in the Eighth Amendment context.
To be clear, I’m not trying to construct an originalist interpretation of the Eighth Amendment here or really to make a constitutional legal argument at all. First, I’m sure there have been countless law review articles and legal briefs on how to interpret the Eighth Amendment under an originalist or any other lens. Second, I don’t really agree with Justice Thomas that the proper way to interpret the Constitution is to ask, to borrow my 1L con law professor Pam Karlan‘s shorthand for originalism, “WWJMD?” (What would James Madison do?) Finally, there’s a sense in which it’s odd to even speculate about what the Founders might have thought about inmate litigation since, at the time of the Bill of Rights, most criminal offenders weren’t inmates. Although imprisonment had become the default punishment in many places by about 1810 or so, as late as 1790, fines, whipping, flogging, banishment, and hanging were still the more common criminal punishments.
It’s more that I’m literally, just as a historical matter, curious as to how the idea of a 35-year prison term would have seemed to someone in the late 18th century, whether a Founding Father, or just an ordinary guy. And I expect that to many, my suggestion that such a someone might view a 35-year prison term as “cruel and unusual” will sound ludicrous, since, after all, the framers borrowed the phrase “cruel and unusual punishment” from the English context in which it was understood to ban things like drawing and quartering. Compared to that, what’s so “cruel” about sending a person to prison?
But, as I noted above, in the late 18th century the idea of incarceration for a term of years as a standard criminal punishment was still relatively new. And even once it caught on in the early 19th century, I doubt many people were spending 35 years in prison for anything, and certainly not for possession of marijuana, which wouldn’t have been a crime, then. The first prisoner at the Eastern State Penitentiary, for instance, who arrived there in 1829, had been sentenced to “two years confinement with labor” for stealing a $20 watch. Unfortunately, not much research has been done on early prison sentence lengths, so there’s a lot we just don’t know. But Ashley Aubuchon-Rubin’s study of the Eastern State Penitentiary in the mid-19th century suggests the upper limit for most crimes was about 12-15 years. (A life sentence was a possibility, but only for murder or rape and only for repeat offenders.) Pennsylvania’s sentences tended to be shorter than other states’ but it seems like all the states had mean sentences in the single digits.
So, given that single-digit sentences were the average well into the 19th century even for violent crimes like murder, rape, and robbery (granting of course that many murderers were also executed), I’d hazard a guess that if you polled the average guy on the street in, say, 1795, he might say that sending someone away for 35 years for possessing a narcotic plant would be “cruel and unusual.” More likely he just wouldn’t know what to make of such a strange idea. But he might also say it would be totally fine to publicly flog someone for theft. The average guy on the street today might give the reverse answers.
I don’t think this history can necessarily tell us how to interpret the Eighth Amendment. But I do think it belies Justice Thomas’s implication that his Eighth Amendment jurisprudence is straightforwardly consistent with Bill of Rights-era understandings of punishment. Actually, upon admittedly cursory reflection, I don’t see what operative content Justice Thomas’s jurisprudence would give to the phrase “cruel and unusual.” It seems like he’s just selectively combined some 18th-century notions of what people then thought was “cruel and unusual” (drawing and quartering) with some 20th-century notions of what he today doesn’t find “cruel and unusual” (very long prison sentences for non-violent crimes) but without fully accounting for the fact that the entire system of crime and punishment was completely revolutionized during the 19th century. Under such a reading of the Eighth Amendment, what if anything does it ban? What if anything does it ban that a 21st-century American state would actually try to do?
** A caveat: I suspect that Justice Thomas might think the Eighth Amendment shouldn’t apply to the states at all, but there are also plenty of federal drug prosecutions involving very long sentences, to which the above analysis equally applies.