Civil Rights and Civil Liberties – Crime, Punishment, and Constitutional Intepretation
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Civil Rights and Civil Liberties – Crime, Punishment, and Constitutional Intepretation

September 11, 2019


>>The 8th Amendment states that “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” Like other Constitutional provisions, though, the prohibitions against cruel and
unusual punishment cry out for interpretation (sorry to be so dramatic). What is cruel?
What is unusual? In Supreme Court jurisprudence and in popular
commentary — the 8th amendment is the subject of very different modes or approaches to the
interpretation of the Constitution. Should we fill in the blanks of what cruel and unusual
means by repairing to purported ideas of what those who ratified the Constitution meant
by those terms? And if we do, whose understandings should be binding? After all, there isn’t
a footnote after the 8th Amendment that points us to a ready-made definition that cites a
founding father for its legitimacy. Or should we, as Justice William Brennan advocated,
understand the clause in relation to the “evolving standards of decency that marked the progress
of a maturing society.” These are not easy questions, especially considering the potential
cruelty that could be inflicted upon individuals but, most importantly, because an interpretation
of the 8th Amendment with respect to the death penalty is a final decision — there is no
going back and undoing the death penalty. These concerns are only compounded by the
increase in prisoners freed from death row with developments in forensic science, especially
DNA. Although there are many punishments carried
out by the state that implicate the 8th Amendment, not the least of which are punishments of
excessive bail and disproportionate sentences for crimes, this week we’ll look at the challenges
to the Amendment in the area of the death penalty — a punishment which the United States
still chooses, even though every other country in the western world has abolished it, putting
it in a category with nations such as North Korea, Iran, Yemen, and Afghanistan, to name
a few. The most relevant origins for the 8th Amendment
are in 16th Century England, where Ecclesiastical courts routinely punished, tortured, and put
to death heretics and religious dissenters. As a result, the English Bill of Rights in
1689 explicitly banned the use of “cruel and unusual punishments.” Although our discussion this week is limited
to 8th amendment challenges to the imposition of the death penalty, we have to understand
that the understanding of cruel and unusual, even in 16th century England, cast a wide
net as to which types of governmental punishments might fall under the category of cruel and
unusual. So the ban on them can include the actual practices of punishments (a ban on
torture however defined); and to disproportionate sentences (like the imposition of twenty years
imprisonment for shoplifting, as well as some types of automatic punishments, like the three
strikes you’re out sentencing guidelines); and it also extends to sentences and punishments
that are not specifically authorized by the state. The death penalty cases that we’ll study begin
to come go the Court in the 1970’s. But, interestingly, before then the Court was rarely asked to
intervene and give a consistent answer to the question “what is a cruel and unusual
punishment.” But on the few occasions that they did, two themes emerged. The First was
that the word “cruel,” not the word “unusual,” should be the Court’s inquiry. So, for example,
the Court early upheld the use of a new or novel way to execute people — electrocution.
It was, therefore, novel, not unusual. The Court was more concerned with understanding
the word “Cruel,” especially as it related to torture. The second theme that the pre-1970’s
Courts emphasized was disproportionate sentences could violate the cruel and unusual punishment
clause. In Tropp v. Dulles in 1958, for example, the Court ruled that stripping the citizenship
of a military serviceman who was convicted of desertion was cruel and unusual because
it was disproportionate to the violation. The arc of the cases we’ll read this week
move from the Court’s effective ban on the death penalty in the early 1970’s to the Court’s
subsequent approval of it after states changed fundamental aspects of the way death penalty
trials were carried out in the United States, especially the development of bifurcated trials,
where one jury would heard a case and determine guilt, and another jury, or judge, would impose
punishment. Other related procedures that we’ll look at it in death penalty cases is
whether and to what extent mitigating factors can be used to determine whether a defendant
is death penalty eligible. We’ll also see how the Court handles statistical evidence
that suggests that African-Americans disproportionately receive death sentences. We’ll also look at arguments about whether
the death penalty can be applied to minors, the mentally challenged, and whether certain
crimes that fall short of murder can trigger the death penalty automatically — like child
rape. These are tough cases to read and think about
— what’s at stake in these decisions are not only varying academic and theoretical
pronouncements of what the 8th Amendment cruel and unusual punishment clause means, but actual
lives. So as you make your way through these cases,
I want you to think about a few things: How should we interpret the cruel and unusual
punishment clause? Should we rely upon 18th century notions or should we, as Justice Brennan
did, repair to evolving standards of what might count as cruel and unusual punishments? If we accept the death penalty as constitutional
(in other words as not violating the 8th Amendment), how should we deal with the existence of social
science data that suggests the death penalty is applied disproportionately based on race;
and how should we make sense of the increasing amount of men and women who have been found
innocent through DNA tests? Should we execute the mentally challenged? And finally, should we understand the death
penalty as a deterrent or a punishment? Or both?

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