Proper judging requires the application of the law, and fortunate is the judge who has mainly good law to apply.
Miller v. Alabama: Justice Thomas's Originalist Dissent
In my last post on Miller v. Alabama, I discussed the majority opinion’s use of a common law constitutionalism approach to implementing the cruel and unusual requirement. The approach seems constrained on its face, but in fact turns out not to be.
In this post, I want to explore Justice Thomas’s originalist dissent and his use of originalism to constrain precedent. The majority had relied on two lines of precedents that it then expanded to hold that a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders is cruel and unusual under the Eight Amendment. Justice Thomas argues that neither of these lines of precedent is consistent with the original understanding of the Eight Amendment.
Thomas disputes the first line of cases on originalist grounds. These cases adopt categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty – cases such as Roper v Simmons, which bars capital punishment for children, and Graham v. Florida, which prohibits life without the possibility of parole for a juvenile convicted of a nonhomicide offense. Relying on Justice Scalia’s opinion in Harmelin v. Michigan, Thomas concluded that the Cruel and Unusual Punishments Clause does not contain a proportionality principle and therefore does not authorize courts to invalidate any punishment they deem “disproportionate to the severity of the crime or to a particular class of offenders.”
Thomas may be right, but there has been some academic work on the Eighth Amendment’s original meaning that argues it does contain a proportionality principle. In a very interesting article, Professor John Stinneford argues that “the word ‘unusual’ was a term of art that referred to government practices that deviate from ‘long usage.’” Building on this article, Stinneford argues in a second piece that the original meaning of the Eight Amendment includes a proportionality requirement:
The English version of the Cruel and Unusual Punishments Clause was specifically directed at excessive punishments, not simply illegal ones. In America, the phrase “cruel and unusual” was widely used within the legal system as a synonym for “excessive” and was not an “exceedingly vague” way to express the idea of disproportionality. Finally, the historical evidence shows that the Framers and early interpreters of the Cruel and Unusual Punishments Clause understood it to prohibit excessive punishments, not merely barbaric methods of punishment.
Thomas also disputes the second line of cases, which prohibits mandatory imposition of the death penalty. According to Thomas, the Cruel and Unusual Punishments Clause prohibits “torturous methods of punishment” and is not concerned with whether a particular lawful method of punishment is imposed pursuant to a “mandatory or discretionary sentencing regime.” He bases this in part on the fact that “in the early days of the Republic, each crime generally had a defined punishment prescribed with specificity by the legislature,” and this included capital punishment.
In Miller, Justice Thomas does not argue for overturning these precedents. Presumably, this is not directly raised by the case and the parties did not ask the Court to do so. Instead, the original understanding is relevant as to whether these precedents should be extended. Because they conflict with the original understanding, they should be limited to their existing facts and should not be used to create further departures from the original understanding.
This is a common approach to reconciling originalism and precedent, and represents a reasonable compromise between both values. I have advocated a different version of this compromise in my own scholarship.