Might a real originalist turn in Eighth Amendment jurisprudence help many more criminal defendants than it would hurt?
The question in the title of this post is prompted by this new Reuters article about a recent speech delivered by Judge Thomas Hardiman. The press piece is headlined “US appeals judge urges new standard on ‘cruel and unusual’ punishment,” and here are excerpts:
A federal appeals court judge on Wednesday argued that the conservative-majority U.S. Supreme Court would have grounds to revisit its interpretation of the U.S. Constitution’s prohibition on cruel and unusual punishment and “return to the text and original meaning of the 8th Amendment.” In a speech delivered at Harvard Law School, U.S. Circuit Judge Thomas Hardiman, an appointee of Republican former President George W. Bush on the 3rd U.S. Circuit Court of Appeals, argued that the high court should abandon a decades-old legal test for deciding if a punishment was unconstitutional.
The Supreme Court in a series of cases starting in 1952 interpreted the 8th Amendment’s prohibition on cruel and unusual punishment based on what opinions described as the “evolving standards of decency that mark the progress of a maturing society.” But Hardiman told the Harvard chapter of the conservative Federalist Society that the standard is a “contrived ratchet” that has fueled a “runaway train of elastic constitutionalism” giving judges too much power to invalidate laws in favor of defendants. “Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments,” he said. “The only constant is that more and more laws adopted by the people’s representatives have been nullified.”
Supreme Court rulings that have relied on that standard include one in 2005 barring capital punishment for offenders who were under 18 when they committed crimes and a 2008 decision striking down a Louisiana law allowing the death penalty for the rape of a child when the victim did not die. The court also relied on that standard in a 5-4 decision in 2012 that declared unconstitutional mandatory sentences of life in prison without the possibility of parole for people under age 18 convicted of murder….
The ideological split among justices has since changed, and thanks to three of Republican former President Donald Trump’s appointments the court…. That newly constituted court in 2021 put an end to the court’s run of decisions that put limits on life sentences without parole for juvenile offenders, making it easier for states to impose such sentences.
The court did so without mentioning the “evolving standards of decency” test, Hardiman said. He questioned whether the court would now “return to the text and original meaning of the 8th Amendment” as it has done in other areas, like the 2nd Amendment. He pointed to last year’s Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, which set a new test for assessing firearms laws, saying restrictions must be “consistent with this nation’s historical tradition of firearm regulation.”
I have written in the past about the myriad challenges in giving meaning to the Eighth Amendment’s prohibition on “cruel and unusual punishments,” and I fully understand concerns and disconcert with “evolving standards of decency” test. But, realistically, as interpreted through the years by the Supreme Court and lower courts, this “decency” test has only provided real constitutional protection to only a handful of capital and juvenile murderers. As applied in modern times, 99.99% of all criminal defendants have zero chance of making a successful Eighth Amendment claim.
But if there were an originalist turn in Eighth Amendment jurisprudence, and especially if modern punishments were to be judged based on whether they were consistent with the nation’s historical tradition, I could imagine a whole lot more criminal defendants having a whole lot more viable Eighth Amendment claims. In a series of articles, Professor John Stinneford has forcefully argued that sound originalism would give the Eighth Amendment considerable bite. Specifically, as the abstract of this article summarizes:
The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, longterm solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.
Professor Michael Mannheimer is another scholar who has made intriguing originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments. And I have seen various other claims and arguments in various other settings that could at least support arguments by various defendants that various modern punishments and not consistent with the nation’s historical tradition.
Notably, the experience of the post-Bruen originalist jurisprudence seems to be giving lower court judges considerable power to invalidate lots of laws in favor of (gun) defendants. Consequently, I am not sure Judge Hardiman has thought this all through if he really in concerned about a constitutional jurisprudence that gives judges “too much power to invalidate laws in favor of defendants.” I sincerely think a real originalist turn in Eighth Amendment jurisprudence could actually help many more criminal defendants than it would hurt, at least relatively to existing Eighth Amendment jurisprudence.