Cruel punishments should be unusual

June 27, 2012


— strated unequivocally that (public flogging and hand branding) were not cruel and unusual measures in 1791 ... I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an Eighth Amendment challenge.”

     — Justice Antonin Scalia

In the 1790s, a Tennessee man convicted of horse theft got off easy. Instead of being hanged, as horse thieves often were, he was sentenced to “stand in the pillory one hour, receive thirty-nine lashes upon his bareback well laid on, have his ears nailed to the pillory and cut off, and that he should be branded upon one cheek with the letter H and on the other with the letter T, in a plain and visible manner.” Tennessee could not do that today because of what the Supreme Court has called “the evolving standards of decency that mark the progress of a maturing society.”

The Eighth Amendment, ratified in 1791, forbids “cruel and unusual punishments.” Originalism holds that the Constitution’s language should be construed to mean what the words meant at the time to those who wrote and ratified the Constitution. On Monday, a Supreme Court ruling about punishment vexed the four justices (John Roberts, Scalia, Clarence Thomas and Sam Alito) most sympathetic to originalism, who dissented. The majority held that sentencing laws that mandate life imprisonment without possibility of parole for juvenile homicide offenders violate the Eighth Amendment.

In 1999, Kuntrell Jackson, 14, and two others, 14 and 15, robbed a video store in Blytheville, Ark. The 15-year-old fatally shot the store clerk. Jackson, who had a juvenile arrest record, was tried as an adult for aggravated robbery and felony capital murder. He was sentenced to life without a possibility of parole.

By 2002, Evan Miller, 14, a victim of serious domestic abuse, had tried to kill himself five times. He and another youth, after drinking and smoking marijuana with a 52-year-old man whose trailer was next door to the Millers’ in Lawrence County, Ala., tried to rob him while he slept. He awoke, they beat him with a baseball bat, set fire to his trailer and he burned to death. Miller was sentenced to life without a possibility of parole.

Because of their offenses, both Jackson and Miller were automatically tried as adults. Both were sentenced under mandatory sentencing laws.

On Monday, Justice Elena Kagan, joined by Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, held that the Eighth Amendment prohibits such sentences when they are mandatory. Previously, the court had held that, regarding children, such sentences are akin to the death penalty, which the court said requires individuation — consideration by sentencing authorities of each defendant’s characteristics and crime.

This ruling extends two others, one holding that the Eighth Amendment bars capital punishment for children under 18, the other that it bars life without parole for a juvenile convicted of a non-homicide offense. These decisions held that regarding culpability, and hence sentencing, children are constitutionally unlike adults. The decisions came in the context of accumulating scientific evidence about increased impulsivity and diminished responsibility because of adolescent brain development.

Joined by Scalia, Thomas and Alito, Roberts noted that the majority conceded that almost 2,500 persons are serving life sentences without parole for murders committed before age 18, and that more than 2,000 of these sentences were mandated by law. Therefore such sentences are not unusual. Hence they are not cruel and unusual. Furthermore, the court discerns society’s standards — evolving or not — largely in its laws and practices, and the sentences the court overturned Monday are mandated in a majority (29) of states.

Alito wrote: “Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law?” Besides, he said, aren’t elected representatives better than judges at gauging society’s standards?  

The dissenters were right that a practice can be both constitutional and reprehensible. Even if sentencing 14-year-olds to die in prison is the latter — and it is — whether it is the former depends largely on the infrequency of such sentences. It is, however, to be hoped that the case the court decided Monday might prompt changes in social thinking that will give other cruel punishments, such as protracted solitary confinement, the infrequency requisite for making them sufficiently unusual as to be unconstitutional.

— George Will is a columnist for Washington Post Writers Group


ochocinco 1 year, 9 months ago

Notice one group of justices pointed to the long-standing precedence regarding punishment for heinous crimes in the US while the other group of justices worked backwards--striking down a law they didn't like using controversial and arbitrary socio-biological arguments regarding brain development.

But the slippery slope is as follows. 18 year old brains aren't as developed as 21 year old brains, which aren't as developed as 25 year old brains. "Adulthood" has been arbitrarily granted to people who turn 18, but this has nothing to do with the person's brain development level. Why shouldn't the court go further and rule capital punishment violates the 8th amendment for people under 21? Why not 25? Where do you draw the line?

Going further, men have higher levels of testosterone than women, making them more prone to violence. This is a biological fact, much like brain development is. So is it "cruel and unusual punishment" to sentence men who commit violent crimes harshly, when they are at a higher risk for committing testosterone-laden violence than women? Of course not.

At either rate, Alito is correct is stating that it is the state legislature, and not 9 Supreme Court justices who have jurisdiction on these matters. Laws are updated and changed to accommodate technological, political, social, and demographic developments. The Constitution, on the other hand, is changed only in the rarest of instances and done so by 3/4 ratification of the people. It isn't done by 5 unelected liberal justices, arbitrarily picking what laws they want to uphold and which ones they don't. That is tyranny.


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