Enforcing the Eighth Amendment is a Job for All

Clickbait stories pop up on my feed or whatever when I check online. It is somewhat annoying. It also can be found on social media and blogs. 

Sometimes a new story is liable to bother us. Maybe it should. It often is a bit more complicated than it first looks. Single court opinions can be the same way, especially when we click the links and do some research. They often also have interesting content.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Rummell v. Estelle (1980) involved a 19th-century Texas statute that provided life imprisonment with the possibility of parole to three-time "habitual" offenders. Three non-violent felonies were involved, showing the open-ended nature of the policy.

I re-listened to the oral argument and the 5-4 opinion is understandable. The lawyer for the petitioner kept on putting in so many caveats that it suggested he was asking an almost ad hoc approach be applied. The state's reply also came off as rather reasonable.

The parlor game in constitutional cases is often line drawing. It is going to be somewhat arbitrary. Choices have to be made. Still, the lawyer probably tossed in too many. And, they repeatedly were dubious. 

Okay, so the test is non-violent felonies? Not quite. Maybe drug crimes are especially bad. Or non-violent financial crimes had really sympathetic victims (the little old lady with their social security checks). Three was too few but what about seven? 

The majority granted the possibility of extreme cases but generally, courts should not decide punishments were disproportionate to the offense. The exceptions were extreme punishments for traffic tickets or the like so that caveat was not exactly convincing. 

Justice Stewart concurred to say bad policy is not by rule an unconstitutional policy. Justice Blackmun went along without comment. Then Justice Rehnquist wrote the opinion with the usual suspects like White and Burger going along. White, by the way, was not a default conservative vote but he was unsurprising. 

Justice Powell wrote a strong dissent noting we cannot rely on parole and wanting proportional review with some teeth. He quoted an old Eighth Amendment case to show we cannot rely on what was acceptable when the amendment was ratified. I should have a "wider application than the mischief which gave it birth."

Powell explicitly supported a "living Constitution," a term critiqued by some as making shit up. A principle that applies the text in a logical way deemed appropriate over a hundred years ago is not illegitimate adjudication. Originalism is "living" in real practice as well. And I don't say that critically. 

Justice Powell got Blackmun's vote a few years later in Solem v. Helm, which involved a seventh offense but no possibility of parole. Powell argued the possibility of executive commutation wasn't the same thing. The main core of the opinion, however, was to make his Rummell dissent the law of the land. 

The opinion had this little Easter Egg: it turned out that Rummell was paroled less than a year after his appeal was denied! We usually do know what happens to people after a Supreme Court opinion. It would be a useful exercise for someone to research the end results of cases, including ten or more years afterward.

Consider Harmelin v. Michigan, which watered down Solem. The case involved a first-time offender of drug possession with an amount assumed to be for distribution. Recall how Rummell's lawyer granted maybe a drug charge would be different. 

Harmelin received life without the potential for parole. What happened to Ronald Harmelin? I did some online digging and it turns out he was paroled less than a decade later. Michigan changed the law. State court rulings sometimes often result in relief.

Harmelin was a fractured decision with Scalia (for not the first or last time) traveling where a majority did not want to go (only Rehnquist went along) and rejecting proportionate analysis at all. Three justices, the same who co-wrote the Planned Parenthood v. Casey abortion plurality, agreed Harmelin's punishment was constitutionally acceptable. Only extreme punishments would be problematic. 

Their position became the new rule with the reality of the situation only special situations will result in penalties being struck down on Eighth Amendment grounds. The two key reasons would be capital punishments with problematic aspects and minors. 

How much this holds today after every member of the plurality resigned is unclear. Anyway, in a bit of a curious result, a strong dissent was written by Justice White, who joined Rummell and dissented in Solem. 

Justice White turned out to have a strong defense of proportional punishment analysis, even for drug crimes. White regularly was a stare decisis guy and could be found having some moderate takes in criminal cases. Still, this was a tour de force: 

While the collateral consequences of drugs such as cocaine are indisputably severe, they are not unlike those which flow from the misuse of other, legal substances. For example, in considering the effects of alcohol on society[.]

Justice White isn't exactly the person you think would be the writer of a "let's not have a drug exception to the Constitution" opinion. 

He also noted Scalia's argument that the original understanding of the constitutional point at issue is far from clear.  The partial concurrence rightly noted that ultimately original understanding (even if we can clearly determine it, which we cannot) is not the only thing we use. 

Overall, extreme punishments logically can be found to be cruel and unusual. And, the Supreme Court said so multiple times, not just in capital cases. That should often be the end of it. 

Justice Stevens added a few words in dissent to argue that if death was different (it completely ended matters), life imprisonment was pretty different too. Not being able to get out of prison was rather extreme too. It should also be handled sparingly.  

I agree. The lack of even possibility of parole -- Charles Manson had that -- is ridiculously extreme. We can grant that in reality, it is not always final. This only shows how a rule that allows for periodic reviews (perhaps every ten years) is logical and workable.

The Harmelin trio split 2-1 when three strikes returned to the Supreme Court with Souter writing for the dissenters in one of the two cases. The latest Eighth Amendment case involves criminalizing sleeping in public places. Some were quite appalled. 

A constant theme in these cases was the need to allow legislatures to have discretion in formulating criminal policy. The line drawing would often be subjective or at least open to reasoned debate. On some level, this has a broad reach when applying constitutional text.

Back to the origins of the Bill of Rights, there was some talk about the role of judges to be independent checks on the majority. Chief Justice Roberts appealed that theme in his end-of-the-year report. 

As many noted, his argument left something to be desired. For instance, here and abroad, rights are protected by judges without having (good behavior) life tenure. Justices also repeatedly (selectively) appeal to the need to rely on the elective branches.

The line drawing is going to be complicated with both sides having something of a point. The Eighth Amendment along with other commands that apply to the criminal justice system is often honored by legislative and executive decision-making. 

Constitutional demands are lessons for the government as a whole. Legislative policies promoting sane penal policies as well as careful prosecutorial discretion honor the amendment. 

Constitutional rights are also lessons for the public. Madison in his speech in support of the Bill of Rights recognized this:

[T]hey had a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to controul the majority from those acts to which they might be otherwise inclined.

Before the Supreme Court held that the Second Amendment protected an individual right to keep and bear arms beyond a limited militia function, the public at large understood the words that way. We honor freedom of speech and equal protection. 

The current Supreme Court still finds cases to hand down liberal-minded criminal justice opinions. They might not be big fans of the Eighth Amendment but find some limits. For the rest of the time, it is up to others to honor its principles. 

The past was prologue in that campaign.