Thursday, June 10, 2010

Does the Historian's Hat Fit the Associate Justice's Head?

Like many Americans, I find the news that the Taliban has executed a seven-year-old boy to be deeply sickening. Reaction from world leaders has been fairly predictable — those who have commented on the case use it as an example of the unfathomable cruelty and depravity of the Taliban:

Afghan president Hamid Karzai:
"hanging or shooting to kill a 7-year-old boy . . . is a crime against humanity"
British Prime Minister David Cameron:
"If this is true, it is an absolutely horrific crime . . . If true, I think it says more about the Taliban than any book, than any article, than any speech could ever say."
When I read this story, I immediately thought back to Justice Thomas' recent dissent in Graham v. Florida, in which he argued that the Eighth Amendment should be understood to prohibit "methods [of punishment] akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted." In a footnote to that dissent, Justice Thomas argued that the Founding Fathers would not have considered sentencing a juvenile offender to life in prison without parole "cruel and unusual" because the common law "theoretically permitted [even] capital punishment to be imposed on a person as young as age 7,” reasoning that "It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards."

Did you notice the sleight of hand?

The issue under consideration is life without parole for juvenile offenders, but Justice Thomas shifts the target and starts talking about capital punishment. Since he, as a 21st-century American, assumes that execution is a "crueler" and more "unusual" punishment than LWOP, he assumes that 18th-century Americans would agree. Thus, the fact that they allowed a more severe punishment for juveniles implies that it is "exceedingly unlikely" that they would object to a lesser sentence.

The problem is that the hierarchy of punishments envisioned by Thomas (and his co-signers, Scalia and Alito) is a modern invention, not an 18th-century standard. As Sara at Prison Law notes,
both justices seem to assume that, just like a 21st century person, an 18th century person would obviously have thought death was worse than LWOP. For Justice Thomas, that settles the matter because if the founding generation countenanced death for juveniles, they obviously countenanced LWOP . . . Here’s the big problem: I suspect that late 18th century people would have had simply and utterly no way to conceive of LWOP, much less place it on a hierarchy with the death penalty.
Sara is right — long-term imprisonment as punishment for a crime was not standard practice in 18th-century America. Most criminals were punished by fines, mutilation, shaming, or execution. American jails were places of temporary confinement for those awaiting trial/execution, prisoners of war, and debtors, but daytime parole was common in the latter two cases (see for example the cases of POW Sir Archibald Campbell, held w/ daytime parole @ Concord jail during the Revolution, and debtor Ephraim Ballard, husband of Martha Ballard, story available in A Midwife's Tale). Justice Thomas knows all this — he cites an article called "Penal Measures in the American Colonies: An Overview," which explains that "crimes in the late 18th-century colonies generally were punished either by fines, whipping, or public 'shaming,' or by death, as intermediate sentencing options such as incarceration were not common." The designation of incarceration as an "intermediate" option is his own invention, not an 18th-century understanding of hierarchies of punishment.

In the 1790s and early 1800s, incarceration in a penitentiary began to emerge as a more humane form of punishment than corporal measures. I urge anyone who is interested in this shift to read Louis P. Masur's Rites of Execution, which argues that the new style of punishment that took hold in the Northeastern states between 1790 and 1830 was based on
Enlightenment concepts of balance, proportionality, and humanity in systems of punishment confined with a faith in the reformation of the criminal and redefined sensibilities about public space and social order to make capital punishment a repugnant practice.
Of course, Justice Thomas wholeheartedly rejects the Constitutionality of proportionality in his dissent, arguing that "proportionality in sentencing was not considered a constitutional command" and that the Court's invocation of proportionality "lacks a principled foundation." Thus, it seems clear that Justice Thomas does not consider the penal reforms of the 1790s-1830s to be part of the Founding Fathers' understanding of criminal punishment at the time of the adoption of the Bill of Rights (1791). Therefore, within the parameters he has defined, any imaginative musings on the Founding Fathers' thoughts on long-term imprisonment are purely derived from Justice Thomas' flights of fancy and lack a principled foundation.

I would argue that most Americans living in 1791 would consider life in prison without parole to be both unusual and cruel. The "unusual" part is not in dispute — even Justice Thomas acknowledges that long-term incarceration was "not common." The "cruelty" of the punishment is slightly more subjective, but since the concept of long-term confinement was associated in the American mind with captivity by the French, Indians, or Barbary pirates, as well as the horrors of the Inquisition and other brutalities inflicted by Catholic states, I think there is probably a good case to be made that a pre-1791 American would probably agree that LWOP was a "cruel" punishment.*

If we are to take Justice Thomas' understanding of the Eighth Amendment — that it prohibits "methods [of punishment] akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted" — isn't LWOP an unconstitutional punishment for any offender?

I agree again with Sara, that, "Justice Thomas’s real mistake may not be a static view of the Eighth Amendment, but a static view of history and culture." Like Justice Scalia, that self-appointed expert on gravemarkers, Justice Thomas assumes that the particular set of values, beliefs and assumptions he has derived from his historical, cultural, and social circumstances is universal. He assumes that his understanding is trans-historical and that the Founders would share his worldview. Therefore, he feels qualified to wrap his own subjective understandings in a cloak of hocus-pocus objectivity and bemoan the fact that others are innovating while he is just adhering to the Founders' intent. Like many philosophers and judges before him, Justice Thomas appeals to history to make his case, but does not know what it means to think historically.

*Just to be clear, these types of captivity did not bear much resemblance to modern incarceration, but the average American would certainly have understood them in terms of long-term confinement, even when captives were not actually jailed. The other example of long-term captivity familiar to 18th-century Americans would be slavery, but I don't think that most non-enslaved Americans would have understood it as a type of incarceration.


Roy said...
This comment has been removed by the author.
Roy said...

Let me try this again without so many typos!

The "original intent" school of Constitutional interpretation has always amused me. Contrary to the opinion of those who hold to that school, the original framers of the Constitution didn't see it as something graven in stone for all eternity, but rather as a living document that would adapt to the changes a brand new country such as the United States was bound to undergo in its history; hence the accommodation for amendments. That was certainly James Madison's argument in his contributions to the Federalist Papers, and he was the principal framer of the Constitution. His attitude is no surprise; Thomas Jefferson, Madison's political mentor, actually argued that the Constitution should be scrapped and rewritten every generation in order to keep up with the growth of the nation.

When people like Clarence Thomas, Antonin Scalia, and Samuel Alito try to limit interpretation of the Constitution to the "original intent" of the framers, I always have a strong urge to send them copies of the Federalist Papers and Jefferson's Notes on Virginia to disabuse them of that nonsense.