The Eighth Amendment and Its Future in a New Age of Punishment
Uniquely among the Bill of Rights, the content of the Eighth Amendment is inherently dynamic. To be sure, the content of many (perhaps even most) constitutional provisions is not static because the world changes and judges must therefore draw analogies between the world as it is and the world as it was. Thus, for example, judges must answer question like: Is a device capable of detecting a heat print over a building a search within the meaning of the Fourth Amendment? Is a snapchat message speech within the meaning of the First Amendment? Among judges and constitutional theorists, there is a broad consensus that the best mode of analysis to use in searching for answers to questions like these is analogical. The judge will therefore ask: Is a snapchat message enough like an 18th century pamphlet that it should receive similar protection? Regardless of whether the judge is an originalist or believes in a ‘living’ Constitution, the mere fact that society and technology change dictates an analogical jurisprudence.
And this is where is where the Eighth Amendment is different. The text provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” One could, of course, interpret all three of these limitations analogically, and two of them—the bail and fines provisions—are in fact so interpreted. (Obviously, the adjective “excessive” does not mean precisely today what it meant in 1800 as a dollar amount, but in answering whether a fine or a bail requirement is excessive, the Court uses the ordinary and commonplace analogical approach.) But the limitation on other punishments—that they may not be “cruel and unusual” (C/U)—is different, and giving content to this limitation is problematic along two dimensions.
The first turns on the conjunction. For a punishment to run afoul of the Eighth Amendment, must it be both cruel and unusual? Or are both cruel punishments and unusual punishments unconstitutional? Justice Scalia flirted with the former reading, but the overwhelming body of caselaw establishes that the better reading is the latter one. (Indeed, if the text were to be read otherwise, no punishment would be unconstitutionally cruel so long as it were widely employed and, hence, usual.)
The second problematic dimension—and what makes the 8th Amendment unique—pertains to what C/U actually means. Subject to an important nuance I will mention below, the original meaning of C/U is articulated in the Supreme Court’s decision in Trop v. Dulles, 356 U.S. 86 (1958). The case involved a private in the U.S. Army named Albert Trop who had been serving in Morocco. He was convicted and dishonorably discharged for desertion, and had, pursuant to 8 U.S.C. § 1841, been stripped of his U.S. citizenship. The question before the Court concerned the permissibility of that punishment. The Court traced the cruel and unusual punishment clause directly to the English Declaration of Rights of 1688 and, before that, to the Magna Carta. It then said: “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man…. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But…[t]he Court [has] recognized…that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (356 U.S. at 99–101). The holding in favor of Trop was by a vote of 5-4, but even the dissent (written by Justice Frankfurter and joined by Justices Burton, Clark, and Harlan) did not dispute Chief Justice Warren’s observation that the meaning of the Amendment changes, that it is dynamic, and that the definition of cruel and unusual turns on society’s evolving standards of decency (ESD). It has nothing to do with analogy.
Since Trop, the ESD formulation has appeared in at least fifty of the Court’s decisions, and among the current members of the Court, its centrality to ascertaining whether a punishment violates the Eighth Amendment appears to be accepted by all of them. (In U.S. v. Briggs, 141 S.Ct. 467 (2020), in an opinion authored by Justice Alito, the Court referred favorably to the ESD standard in a case involving a statute of limitations; however, Justice Barrett did not participate in Briggs, so her view remains unknown.) And in contemporary death penalty law, the ESD criterion has proved monumentally important. The Supreme Court’s decisions holding both juveniles and the intellectually disabled to be ineligible for execution rest entirely on this criterion (See Roper v. Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002). For more than two centuries, states had the power to execute murderers under the age of 18 as well as murderers with IQ scores in the 60s, and execute such murderers they did. But because of ESD, they no longer may. The definition of cruel and unusual changed, it expanded. How and why does this happen?
In The Eighth Amendment and its Future in a New Age of Punishment, Meghan J. Ryan and William W. Berry III have published a timely, important, and unusual volume that answers this and many other questions. They have brought seventeen other scholars with them to the project of identifying the doctrinal underpinnings, the current state of the law, and where the Eighth Amendment is headed. Unlike many contemporary treatments, this book examines capital punishment without neglecting noncapital sanctions, and without ignoring the bail and fines clauses in the constitutional text.
Divided into three parts, the collection begins with a series of chapters addressing the Eighth Amendment’s historical foundations, beginning with the 17th century English Bill of Rights and continuing through the founding era. John Bessler provides an overview of early doctrine, noting that not only was the C/U clause rarely litigated, but that most of the early state constitutions included a similar prohibition. John Stinneford’s chapter begins by observing, as we have discussed, that the meaning of the C/U clause is tied to evolving standards, yet he cautions that at least one recent decision (Bucklew v. Precythe, 139 S.Ct. 112 (2019)) may signal a return of originalism to Eighth Amendment jurisprudence, and his chapter examines what such a doctrine would look like. Rounding out Part 1, Michael Mannheimer explores the fascinating notion that an orthodox federalist approach to the clause could mean that what is cruel and unusual in one state (or sovereign) is not necessarily cruel and unusual elsewhere.
The second part primarily homes in on contemporary doctrine. Several chapters address important issues largely neglected in contemporary scholarship. For example, Samuel Wiseman offers a rare deep dive into the bail clause and stresses the importance of the topic by noting that nearly two-thirds of people in U.S. jails, or just under half a million individuals, have not been convicted of any crime, yet are confined because they are denied bail or cannot afford it. In a similar vein, Beth Colgan discusses the economically regressive impact of fines, calling attention not only to the debilitating impact fines can have on economically marginalized communities, but also to possible explanations for why the fines clause has received relatively little attention.
Relatedly, Sharon Dolovich moves us away from pretrial, trial, and sentencing proceedings and directs our attention to the prisons where convicted individuals are sent. While the Eighth Amendment has been deployed by the incarcerated to challenge the constitutionality of their conditions for around half a century, the contemporary development of so-called conditions litigation has departed starkly from the promise held out in the early cases that the courts would aggressively police prison interiors. Dolovich is not prepared to conclude that the C/U clause effectively provides little or no protection for the incarcerated, but her warning is clarion.
The remaining five chapters of part 2 address overarching values. The book’s editors, Professors Berry and Ryan, explain that the promise of embedding the concept of human dignity into the constitutional norm has gone unmet because the Court has never seriously undertaken to say what dignity means. Emphasizing the same theme, Corinna Barrett Lain traces the origin of the ESD criterion far deeper than Trop, beginning instead with Weems v. U.S., 217 U.S. 349 (1910), decided nearly half a century before Trop. In an oblique challenge to my earlier suggestion that the mode of vesting the C/U clause with content is uncommon, if not unique, Lain argues that applying this concept is not limited to the Eighth Amendment and that, in point of fact, ESD can undermine the supposed centrality of human dignity by elevating majoritarianism as the method employed to identify constitutional value. Underscoring Lain’s critique, William Berry, in a chapter of his own, observes that while the ESD formula might appear to invite the Court to conduct its own normative assessment of a given punishment (say, the death penalty or life without parole), it has in fact never chosen to do so. Rather, it has approached the content of the prohibition entirely by deferring to majoritarianism.
Richard Frase’s chapter gives us a preview of what at least part of the C/U jurisprudence might look like if the Court’s approach were not entirely majoritarian. He explains that the Court’s proportionality doctrine (i.e., the principle that a punishment violates the Eighth Amendment if it is grossly disproportionate to the crime) provides a toehold the Court could use to articulate upper limits of permissible punishment. He elaborates that either a purely retributivist or purely utilitarian approach to punishment would allow for such a limit, yet courts have not identified such limits, much less taken steps to enforce them.
Sandwiched in the middle of Part 2 is Richard Bierschbach’s chapter, which offers a unique and provocative overview of the C/U clause that hints at a possible unifying theme. Bierschback begins by explaining how, in administrative law, courts are preoccupied not with the answers given by administrative agencies, but instead with the processes agencies use. Much as modern administrative law is increasingly agnostic as to the final agency rule, contemporary Eighth Amendment law, in Bierschbach’s telling, is less concerned with the content of a punishment than the procedures adhered to in dispensing it.
Finally, Part 3 looks forward, offering mostly conservative predictions (conservative with a small ‘c’). In separate chapters, Deborah Denno and Eric Berger, two of the nation’s leading scholars on jurisprudence pertaining to lethal injection, both anticipate a future where all death penalty states use a single drug (instead of three) and where drug shortages still remain an issue. Carol Steiker and Jordan Steiker point to the dramatic decline in the use of the death penalty in recent years, but, with an eye on the Supreme Court’s current personnel, doubt judicial abolition lies in the foreseeable future. If judicial abolition does come, however, the reason may well be that the Court can no longer gainsay role that sheer capriciousness plays in capital sentencing, which Sherod Thaxton cleverly quantifies in his chapter.
Jeffrey Kirchmeier analyzes the stubborn effect of race on sentencing and offers the pessimistic conclusion that the Supreme Court is poised to do as little to make punishment race-neutral in the future as it has in the past. Cara Drinan writes about one area where the Court has been especially active—juvenile life-without-parole sentences—and convincingly argues that juvenile sentences will remain draconianly harsh unless state legislatures take action, because the Supreme Court has reached its limit of intervention.
Fittingly, the final chapter (again written by Meghan Ryan) addresses how scientific developments, which are inherently evolving, will continue to shape legal analysis, even as the law struggles to catch up with science and as courts are often ill-equipped to account for scientific change.
As I hope my brief synopses show, there is not a weak bat in this lineup. It could serve as a textbook for a law school course on the Eighth Amendment, a resource for lawyers and law professors who labor in the shadow of the cruel and unusual punishments clause, and an important reminder for all students of the Constitution that the U.S. is not only the country with the world’s largest prison population and the world’s highest per capita rate of incarceration, but also a country where the constitutional norm aimed at protecting that scandalously large population is both insufficiently developed and lackadaisically applied.
David R. Dow is the Cullen Professor at the University of Houston Law Center and the founder of the Texas Innocence Network. He and his team have represented more than 110 death row inmates at every stage of state and federal appeals.