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Cruel and Unusual

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Fair warning: What follows is a post on constitutional reasoning by the member of this blog who doesn’t know anything about it, not to be confused with the one who does.

I’ve got little (OK, nothing) of substance to say about yesterday’s Supreme Court decision ruling the execution of minors is unconstitutional on 8th amendment grounds. I will say this: In a world filled with Alberto Gonzales, Abu Ghraib, Guantanamo and Moher Arar, I’ve felt the sting of my country taking so many steps toward the abyss that I’d almost forgotten what it feels like to take a step back away from it. It feels good.

So, unless Scott explains why this decision isn’t the cause for celebration I think it is, I’m celebrating. But, despite this phrase’s popularity in constitutional documents from the 17th century to the 20th, I’ll confess a fair bit of confusion over how to think about how to sensibly apply cruel and unusual to particular cases. In this case, the response from much of the right has been to fulminate that it can’t be that unusual if 19 whole states allow it. This line of reasoning seems to get us nowhere, as under this logic any form of punishment practiced in an unspecified minimum number of states (presumably, less than 19) must, by definition, not be cruel and unusual. Setting aside ‘cruel’ for a moment, let’s note that it actually is rather unusual (Texas is perhaps an exception here) to execute minors in those states. At the end of the day, this punishment simply wasn’t applied very often. But again–this hardly seems like sensible reasoning about the permissibility of certain forms of punishment. This “evolving consensus” reasoning seems not much better than its opposite. Some punishments might best fit a small class of defendants, or make sense in a small number of contexts. These are unusual punishments. So be it. Of course, in legal reasoning, “unusual” is often taken to mean “not arbitrary.” This I can get behind, but it seems like a pretty big shift in meaning.

And as for cruelty–of course, it only makes sense to apply a standard of the times, as it’s ludicrous to pretend that it doesn’t. See Don Herzog on the pillory. Originalists look particularly silly here. But it seems to me that most punishments handed down by our courts are cruel. Cruelty seems to have little to do with the justification of a penalty. We all (well, those who haven’t completely lost their moral compass) understand this about torture, and it seems to me to be pretty clearly true about executions as well. If they’re cruel, they’re cruel, whether we’re talking about Jeffrey Dahlmer or an angry, confused, strung out 16 year old kid.

But I’d go further. Imprisonment seems unavoidably cruel. Indeed, the treatment of most of our prisoners seems cruel. Yes, I want prison reform, but that’s not my point here. When it comes to rules that apply a standard of fairness to law, we have to make somewhat arbitrary distinctions into bright lines–an age of consent, a level of mental capacity, etc. But I can’t for the life of me figure out what this has to do with cruelty. Cruelty isn’t about the actions it responds to–it’s generally understood as a quality of the action in question, regardless of context. Think about child abuse: when we try to construct a list of what forms of punishment for children go beyond the pale and fall into the unacceptable category, we simply don’t make any reference to the form of misbehavior the punishment is being administered in response to.

As I understand it, a good deal of constitutional reasoning about the 8th amendment injects a sense of proportionality into thinking about the issue. I simply don’t see how “the punishment should fit the crime” and “punishments should be administered fairly” have anything at all to do with cruelty, but I can see why constitutional reasoning would drift this direction: it gives the jurists something to sink their teeth into. The “cruel and unusual” standard has become a standard constitutional language, appearing in the UDHR, the Canadian Charter, and most recently, the Charter of Fundamental Rights of the EU. If I were writing a constitution, I’d be tempted to buck tradition and try to figure out a better way to come up with a standard for the evaluation of punishment.

Update: Yglesias has similar thoughts about ‘evolving consensus’ reasoning. I can’t necessarily go along with him on keeping the courts out of the “bright line” business altogether. The bright lines aren’t completely arbitrary; they’re a best guess at the proper implementation of a substantive principle. If the case can be compellingly made that a legislator has drawn a bright line in a place that is inconsistent with a constitutional principle, the courts should go ahead and revisit the issue. As for courts avoiding anything too “inherently political,” well, I don’t really know how to formulate a response to that, but I have my doubts that he’s working with a coherent conception of the political.

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