Prison Law Blog

Sara Mayeux

On Reading Graham: Justice Stevens and Thomas’s Ahistorical Historical Assumptions

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Graham v. Florida is, not surprisingly, getting a lot of coverage around the legal blogosphere today. In addition to my earlier links, check out the coverage at Solitary Watch and California Corrections Crisis. Rather than rehash what other blogs have more capably covered, I wanted to highlight one point of disagreement between Justices Stevens and Thomas, which may be of minor import legally speaking, but of great interest to me as a student who divides her time between the law school and the history department.

Justice Stevens, in his brief concurrence, accuses Justice Thomas of embracing a “static” view of the Eighth Amendment in which “cruel and unusual” means forever and always whatever it meant at the time of the founding. Thus, says Justice Stevens, it would be A-OK with Justice Thomas for a state to execute a 7-year-old for stealing $50. I noted above that this point of disagreement is of minor legal import because (pace perhaps Justice Thomas?) the Supreme Court has held in other cases that it’s unconstitutional to impose the death penalty for non-homicide crimes and for crimes committed by juveniles, and moreover, I can’t imagine any state today would actually try to execute a 7-year-old for petty theft. But the putative disagreement is fascinating for another reason, insofar as it betrays some ahistorical assumptions that both Stevens and Thomas seem to be making about history.

Justice Stevens is referring to this footnote in Justice Thomas’s dissent:

The Court ignores entirely the threshold inquiry of whether subjecting juvenile offenders to adult penalties was one of the “modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.” Ford v. Wainwright, 477 U. S. 399, 405 (1986) . As the Court has noted in the past, however, the evidence is clear that, at the time of the Founding, “the common law set a rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.” Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (citing 4 W. Blackstone, Commentaries *23–*24; 1 M. Hale, Pleas of the Crown 24–29 (1800)). It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards.

Both Stevens and Thomas, then, seem to assume that 18th century and 21st century beliefs about the hierarchy of punishments are basically the same, even if beliefs may change about where on that hierarchy punishment stops being “decent” and starts being “cruel and unusual” (and even if Stevens and Thomas disagree about whether that move matters for Eighth Amendment jurisprudence). That is, both justices seem to assume that, just like a 21st century person, an 18th century person would obviously have thought death was worse than LWOP. For Justice Thomas, that settles the matter because if the founding generation countenanced death for juveniles, they obviously countenanced LWOP. For Justice Stevens, it doesn’t settle the matter, but if anything, only further highlights how much moral progress society has made since the 18th century. (I’m reminded of a Benjamin Cardozo quote from his days on the New York Court of Appeals: “I have faith none the less, that a century or less from now, our descendants will look back upon the penal system of today with the same surprise and horror that fill our minds when we are told that only about a century ago one hundred and sixty crimes were visited under the English Law with the punishment of death and that in 1801 a child of thirteen was hanged at Tyburn for the larceny of a spoon.” For an easily accessible source for that language, see, e.g., this 1970s federal appellate opinion quoting it.)

Here’s the big problem: I suspect that late 18th century people would have had simply and utterly no way to conceive of LWOP, much less place it on a hierarchy with the death penalty. Some jurisdictions used prison terms as punishment by the late 18th century, but it wasn’t yet the default (not until about 1810 in Northern states and later in other regions), sentences weren’t nearly as long as they are today, there was no such thing as “parole,” prisons were very different sorts of institutions, etc., etc., etc. I actually wonder if a late 18th century person might not have thought LWOP crueler than a quick execution, or at any rate very bizarre (why not just end the child’s life if he is truly irredeemable, is what I expect an 18th century person might have thought), but I don’t study that period enough to be confident in that. I do know enough to be confident that to answer this question satisfactorily would take a lot more research into late 18th century beliefs about crime, punishment, the nature of life and death, etc., than just assuming that whatever we today think is a “harsher” punishment is also what a person in an entirely different time and place would think. Now, Justice Thomas may ultimately be right that an 18th century person would think LWOP less cruel than death for a child convicted of a crime, but I — and I suspect most people trained to think historically — would need to see more evidence than just a brief footnote and his say-so to believe him.

In that sense, Justice Thomas’s real mistake may not be a static view of the Eighth Amendment, but a static view of history and culture, and Justice Stevens seems to share that view even if he thinks morality is dynamic. I’ve blogged before about Justice Thomas’s Eighth Amendment jurisprudence and the historical assumptions he seems to be making. I should be clear here and note that in espousing an ahistorical view of history, Justice Thomas is hardly alone in the legal profession; he’s actually probably fairly typical (there’s even a pejorative nickname for this kind of thing: “law-office history”). Similar to how many people with bad memories of high school social studies see history as merely a storehouse of trivia, I think lawyers and judges often see history as merely a storehouse of factoids that they can arrange and rearrange to bolster their arguments. But historians see history as a way of thinking about the past in which we don’t necessarily assume that people then thought the same way we do today.

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