Academic journal article Harvard Law Review

The Eighth Amendment, Proportionality, and the Changing Meaning of "Punishments"

Academic journal article Harvard Law Review

The Eighth Amendment, Proportionality, and the Changing Meaning of "Punishments"

Article excerpt

The debate over the scope and application of the Eighth Amendment has over the past few decades focused increasingly on the historical meaning of the words "cruel and unusual." In a 1983 decision, Solem v. Helm, (1) Justice Powell traced the history of the Cruel and Unusual Punishments Clause back to the Magna Carta and the English Bill of Rights of 1689, which he found to have embodied a strong principle of proportional punishment. (2) More recently, some historians and a minority of the Court have come to question this historical argument. In Harmelin v. Michigan, (3) Justice Scalia argued that it is not necessarily clear whether proportionality was required by the English Bill of Rights. More importantly, Justice Scalia argued that the Framers of the Eighth Amendment understood the words "cruel and unusual" to refer only to certain barbarous methods of punishment. (4) If this historical account is correct, does this mean that the justification for finding a proportionality requirement in the Eighth Amendment--as the majority of the Court still does--is no longer valid? According to Justice Scalia, the answer is yes. In Harmelin, Justice Scalia reasoned that because the words "cruel and unusual" did not refer historically to proportionality, and because, in contrast, the language in certain contemporaneous state constitutions did, the Framers of the Eighth Amendment considered and rejected a ban on disproportionality in punishment. (5) Thus, using the Eighth Amendment to strike down disproportionate jail sentences today would be contrary to original intent: since prison in and of itself would not have been considered a barbaric form of punishment, even grossly disproportionate sentences would not implicate the Cruel and Unusual Punishments Clause. (6)

The purpose of this Note is to challenge this claim on its own terms. This purpose carries two qualifications. First, a protracted discussion of the proper theory of constitutional interpretation is beyond the scope of this Note. Divining original intent may be a precarious exercise (7)--it assumes both that some singular and concrete "intent" exists and that it is possible for modern jurists, with some sense of certainty, to determine what this intent was. This is especially true when, as here, the available historical evidence is scant. But the Court, even beyond Justice Scalia, has looked to and likely will continue to look to historical meaning to determine the scope of the Eighth Amendment. The fact of this approach is sufficient for present purposes--its wisdom may be debated elsewhere. Second, this Note will not seek to add to the scholarship on seventeenth-century English history or American constitutional history. More able historians might find new evidence that supports Justice Powell's understanding of the English Bill of Rights of 1689 or that challenges Justice Scalia's claim that the Framers did not understand "cruel and unusual" to mean disproportionate. But that is an entirely different project. Thus, this Note proceeds from (without defending) the assumptions that original intent can and should be the basis for determining the scope of the Eighth Amendment and that the Framers intended "cruel and unusual" to refer to certain methods of punishment.

This Note insists, however, that one cannot effectively discuss the Eighth Amendment in terms of original intent without examining the word that follows "cruel and unusual" in the constitutional text. The system of "punishments" that existed at the time of the Founding was fundamentally different from that which exists today. (8) The Cruel and Unusual Punishments Clause was written in the context of a system that relied to a large extent on public participation in punishments. Critically, this system of primarily "public" punishments was one in which true proportionality was neither a realistic possibility nor a theoretical imperative. Not long after the Founding, however, this system began to collapse and was gradually replaced by a new system that depended on different methods and a different logic--and that ultimately developed into the system of punishments that exists today. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.