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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
—8th Amendment to the US Constitution
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Prefatory
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This post is a response to two events on the interpretation of “cruel and unusual” in August 2015. On August 25th the Supreme Court of Connecticut ruled in Connecticut v Santiago that the State constitution’s “cruel and unusual” clause precludes the death penalty. And in mid August the Department of Justice intervened in a Idaho district court case, saying that the city of Boise’s ordinance forbidding the homeless from sleeping on public property essentially criminalizes sleep, violating the Federal 8th Amendment. The Connecticut Supreme Court can make what it will of its 8th Amendment analog, but here I shall argue that the death penalty as such is not “cruel.” Yet I will also argue that the DOJ’s intervention in Idaho is correct: absent alternative sleeping arrangements, public space cannot be denied for sleep without condemning a body for being a body, which, below, will be seen as cruel.
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I am against the death penalty and have been from my teens, although neither I nor anyone I have ever known has experienced or been present at an act where death is often invoked as penalty. I simply do not believe words in a document should be forced to fit my views; rather, a clear rationale, based on origin, later textual context (such as additions to the Constitution) and inference must confirm any preference I might have. In the case of the death penalty, I cannot reach such a rationale or inferential path via the 8th Amendment. I can, however, find an alternative path in the Constitution based on process which does eliminate the penalty, but this post is not about that path. Here I focus solely on the attempt to import a revulsion toward the penalty into the word “cruel.” I attach the DOJ’s intervention in the Idaho case to stress that the construction herein is not conservative in any usual sense. It is a sign of fidelity to inference, meaning, and context when application of a single word leads to opposite wishes in the political spectrum, depending on the issue at hand.
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United States jurisprudence is under constant contention over the origin of rights and immunities. Conservatives tend to charge that liberals (or progressives) make words mean what they do not. But conservatives do this as well. Consider Citizens United v Federal Election Commission (2010), which struck down Federal limits on corporate contributions, arguing that abstract legal entities are persons under the First Amendment, a decision generating a low-key perpetual howl for amending the Constitution to assert otherwise. (I dealt with this case in an earlier post.) Or, more arcanely, consider Alden v. Maine (1999), which employs the 11th Amendment to assert that a citizen of a State cannot sue her State–something the Amendment emphatically does not say. That Amendment reads in its entirety
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The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
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“Citizens of another State,” is not “Citizens of the State.” Blatant oversight it might be, but oversight pressed into the Constitution it is. Nonetheless, a 5 Justice majority held that the intent of the 11th Amendment is to preserve State immunity, unless specifically overridden by some constitutional clause, against the Federal Government, and so its courts. A vision of what federalism is rewrote, or rather ignored, the actual text of the 11th Amendment. Both Citizens United and Alden were decided 5-4, and both are as deviant to constitutional text as conservative targets: Roe v Wade (1973) and Planned Parenthood v Casey (1992) on abortion; Lawrence v Texas (2003) on intimate association, finally erasing the fear that adult consensual sex can land one in jail, removing the consequent social threats using that possibility; or, this year, the direct extension of marriage regardless of sex in Obergefell v. Hodges (2015). Justice Roberts, dissenting in this last, ended by saying
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If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
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All of these outcomes, on both sides of the political/cultural spectrum, charge the same thing: that the controlling majority of the Court has acted against text, importing a view not organic to the Constitution itself, monstrously shaping the future of jurisprudence and so society. And this charge is uniformly correct. The anger over Citizens United is exactly mirrored in the anger over Obergefell. My own view is that every one of these cases has been wrongly decided: Citizens United, Roe, Casey, Alden, Lawrence, Obergefell. Yet my substantive preferences are different than this blanket condemnation. I agree, in outcome, mostly, with Roe and Casey, Lawrence, Obergefell; disagree with Citizens United and Alden. Further, I find the first State (Vermont) to consider and affirm gay marriage (as civil union) in Baker v State (1999) to be right in logic and my preferred outcome, that decision being based on the Common Benefits Clause derived from the original 1777 Constitution of Vermont; this case, encountered in 1999, lead me, astounded at the logic, to consider constitutional jurisprudence as means of altering society via a rationale beyond my own preferences.
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I believe, as aside, that the outcomes of Roe, Casey, Lawrence, and Obergefell can be recovered via another federal constitutional path; but that will never happen. Justice Roberts, above, is quietly angry because he recognizes that the import of meaning not there is irreversible, largely through “substantive due process,” which I avoid defining here; what is important, I’d say essential, to note is that these importations have long term consequences in legal and cultural battles. Citizens United is payback for Roe, Casey, and Lawrence, and all 4 fail to assert a clear textual path for their purported rights. The crisis of American jurisprudence is that there is no well defined textual pathway for the articulation of rights. Untethered “liberty interest” and empathy have become, in themselves, constitutional proof. But such has lead to Citizens United which seems destined to impact Federal elections in process and outcome indefinitely.
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While I believe a reasoned textual pathway exists for the recovery of most of Roe and Casey, and Lawrence and Obergefell in their entirety, my goal here is less insane–merely to show how a logic of textually based inference could decide some of the import of the 8th Amendment, this an early step in a logic of jurisprudence whose goal is to define a mechanism for the articulation of rights derived from the Constitution as it now stands. Death as not cruel and enforced sleeplessness of the homeless as cruel are such steps. But the final goal, a mechanism for the articulation of rights beyond any present contention over rights, even if achieved, will lead nowhere. The United States cannot walk back from what it has done. Still, writing need not care for the world.
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Cruel
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The clearest case of cruelty is sadism–the intended direct harming of another to induce pain for visceral enjoyment of the actor. Suppose prolonged torture, over days, as a death penalty, or public draw and quartering. Both are sadistic in intent. In the latter, the victim might be hanged first; but, alternatively in France, he might be quartered while conscious as a public spectacle. So too hangings and, earlier, burnings, were public events in England. In all of these the intent was initially to convey the power of the Crown/State to the public; yet they devolved into entertainment–they became sadistic in intent to as much please the crowd as demonstrate authority or, alternatively, a visceral enjoyment of authority at the expense of another. It is this slide from demonstration to pleasure which produces sadism, so cruelty, and such was a prerogative of the Crown as State. Death could have been performed quietly, and often was. It is Crown choice of the spectacle which is forbidden by the 8th Amendment, the punishment of death turned into the use of the body for other ends. Once public spectacle is abandoned there remains spectacle by the Crown, to same end, now of sheer enjoyment; this too is sadistic so cruel and denied. It is not punishment of a criminal that is cruel but the use of that punishment to other end, beyond reporting sentence has been carried.
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Cruelty grasps more from here. Neglect of the captured body can become a form of enjoyment. Asked of the state of prisoners, simply do not care; but in that disdain is enjoyment, so sadism, so cruelty. The body, possessed by the State in lawful punishment, risks being enjoyed in the possession; this 8th Amendment cruelty forbids. Cruelty then captures lack of oversight. The body being in possession of the State, lack of oversight leads to a plausible inference of bodily neglect; this latter cruel, the former risks enjoyment in the same manner, so risks cruelty. Cruelty becomes bureaucratic. No one wants to know what the body endures but, having possession of the body, that denial is an intent directed to the possible harm of the possessed. Wanting not to know becomes a form of enjoyment, a derivative sadism against the held body, so cruel.
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Neglect evolves with material science and resources. In 1790 disease is common, somewhat mysterious, medicine sporadic outside jail. Medical treatment need be no better than that received by free citizens. But as the latter changes, the standard of willful harm to the held body changes as well. This leads to the bizarre conclusion that prisoners need be treated no better than a citizenry currently starving; possession of the body does not promise a life superior to the free. The logic presented here does not map uniformly onto humanitarian rights. But those free have opportunity to improve their state; the jailed do not. The standard is not what some free must endure, but what most, inescapably, must endure. Consequently, as the welfare State evolves so too does treatment of the jailed. Once, say, cancer is subject to medical care for the poor, so too must the imprisoned by provided such treatment. The logic against overcrowding and nutrition would be similar.
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The Supreme Court has held that 8th Amendment neglect must be willful. Here, not. Minimally, the State may be sued for neglect which amounts to disdain which is sadistic so cruel. But a warden, and his officers, are, subject to the resources provided by the State, vulnerable to the same tort. Cruel may not prevent an execution, but it would enlarge the scope of prisoner redress.
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Incarceration is the entrapping of a life and its potential; death is simply the most extreme trap. As Scalia has noted, the 5th Amendment guarantees due process before loss of “life or limb.” It is not the entrapping which is cruel, but the State’s disposition to the entrapped, the use to which the body is put beyond the entrapment. The one use allowed is forced labor, “loss of limb” being a possible consequence of such. So too the 13th Amendment bans involuntary servitude, which certainly forced labor is, save upon duly convicted crime. Jeopardy of loss should be no greater than in comparable work among the free, for otherwise amounts to neglect, or the gratuitous enjoyment of another’s body. Increasing civil law standards for worker safety thus translate into 8th Amendment cruelty protections.
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Death as entrapment of the body is not cruel, but a botched execution can be, reaching neglect, so inherently sadistic, so forbidden. A botched execution can remove the body from control of the State, for it has violated the cruelty provision so cannot be trusted, somewhat analogous to banning evidence obtained against the 4th Amendment: the State’s unconstitutional act limits its options. Cruelty as an attribute taints the State; once assigned so, the State becomes impotent by the 8th Amendment. As the courts may release prisoner’s for overcrowding, so the court may stay execution until competence is regained, but this is not a ban on execution as such. What remains is an increasingly antiseptic removal of the body as final seizure, a seizure as old as the State itself.
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Excessive force and constitutional tort
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Punishment is consequent of violating legal command. Without legal sanction such consequences are not punishment but rather, under the law itself, assault; 8th Amendment “cruel” transforms a punishment under legal command into an illegal act–an assault. Punishment can exist before trial. Restraining a suspect, a seizure, is, even if wholly verbal, an implicit threat of contingent punishment. The 8th Amendment, then, is not limited to punishment after trial, but applies to any command of seizure; force, either at arrest in the field, under pre-trial captivity, or post conviction, is constrained by 8th Amendment cruelty. Excessive force at capture is cruel, for it oversteps the need of restraint, even if a consequence of institutional negligence, including the training of officers.
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Since cruelty is a measure of the forceful agent (grounded as sadism) relative to resistance by the target, this leads to the somewhat bizarre conclusion that a dead body may be treated cruelly under law; that is, force on a body past death is inherently cruel, as resistance to seizure is impossible. Shooting into a body beyond need to incapacitate is cruel; riddling a body with bullets is both desecration and 8th Amendment cruelty. An agent shooting past probable death, even if the shooting is legitimate prior to death, engages in cruelty.
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Since the 8th Amendment constrains the State, the State cannot be the only means for its enforcement; otherwise the State has the means to alter application of the Amendment, and so its effective definition, through neglect. Charge of excessive force is then inherently a constitutional tort with nuance of fact determined by jury, and death of a suspect, fleeing or resisting, does not inherently remove constitutional jeopardy thereafter for either policing agents or their source of authority, the State. An officer, firing repeatedly point blank, can not claim necessary restraint as defense; repetition approaches cruelty, to be determined by jury.
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Connecticut’s Santiago
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Cruelty is generally viewed as an evolving standard, and the Connecticut Supreme Court in Santiago does so as well. The foregoing analysis of cruelty as derivative of sadism also has an evolving standard, but that standard does not remove execution as a form of bodily seizure. Santiago is actually a rather strange case. Recently Connecticut legislatively abandoned the death penalty, but stipulated that those condemned under prior death penalty law would endure their sentence. The Connecticut Supreme Court, 4-3, held, however, that Connecticut’s decision to abandon death indicated an evolving standard of decency, so cruelty; coupled with other States’ staying executions or removing death as a penalty, Connecticut’s legislative act switched death from penalty to cruel and unusual. This logic would seem to ratchet the State: once a penalty for a crime is reduced, one can not enhance it. Certainly the claim that Connecticut has evolved to a new standard so quickly seems strained; the next elected legislature could reinstate death. The Court thus claims that electoral preference cannot alter evolving standard.
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But evolution is not purely linear; it ebbs and flows, moving its subjects in a directed yet locally haphazard way. To claim that a single legislative session has evolved the world is not to recognize an evolved standard but make it–otherwise so, e.g., a legislature decades hence attempting to reintroduce death as penalty, where the silence of decades asserts the standard. Even this last fails the concept of evolution, more a progressive ratchet on standards at least not at first blush of the Court’s making. An evolving standard is conformal. The greater the jurisdiction of the asserting court, the harder evolution away from the standard becomes. Once the US Supreme Court asserts the standard, deviant evolution is impossible (leaving “informative” law in other countries aside), for the Court will piecemeal strike down any such attempt, creating its own data base for evolutionary stasis. The concept, then, is dishonest, for a plenal Court can never observe retrograde change.
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The problem lies in searching for an outside importation of “cruel and unusual,” which I have avoided. The 8th Amendment is not a measure of population preference, but an absolute standard based on sadism and its extensions. This standard does evolve, but not as a matter of electoral disposition; rather, it evolves as living conditions among the free improve, altering the definition of neglect for the incarcerated. Beyond this, the standard employed above evolves via internal articulation. Draw and quartering is cruel because directly sadistic. Public hanging becomes cruel because superfluous, not truly related to demonstrated State authority, leaving only voyeuristic enjoyment as motivation. Prolonged private executions similarly become voyeuristic in disdain and intent; etc. The evolution is one of reasoned consequence, not public morality however mediated by the State. In this sense cruel as used above is a judicial importation, an articulated penumbra of immunities, yet derived from the foundational use of cruel as sadistic and its later evolved consequences under State control of the body. What one cannot pull from such expanding immunity, however, is abandonment of death as such, for death is merely final seizure, seizure the core incarceration power of the State.
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The US Supreme Court has also tried to capture a measure of externally evolving standard, and the Connecticut Court uses this prior jurisprudence in partial justification of its own attempt. The US Supreme Court in Roper v Simmons (2005) ruled, 5-4, that executing individuals for crimes before their majority (age 18) is cruel and unusual, its logic being in part that many States of the Union abandoned such penalty, indicating an evolving standard of decency against forcing an immature mind at time of crime to endure the ultimate punishment (and noting as well an overwhelming international disposition to the same end). The case expanded Stanford v. Kentucky (1989), which had set a lower bound of execution for crimes under 16, there overturning laws in half of the States. But are laws held by fully half of the States indicative of failing an evolved standard of decency? Would not, rather, such a standard be clearly applicable to only a small minority of States refusing to evolve?
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There is, I believe, another way. A minor has no jury of peers. The 6th Amendment guaranteeing jury trial does not say “peers,” but the sole import for the word “jury” in the Constitution is the common law, so “peers” is implied. Jurors, however, must be of majority age. If minorities have no jury peers at time of crime, they cannot be convicted under the 6th Amendment. Whatever a jury is in a minority trial, it is not the same instrument guaranteed in the Constitution. The protection of jury being unattainable, conviction cannot be as secure, so must be under greater oversight. Execution removes oversight, so I would forbid the execution of minority crimes based on a structural failure of the 6th Amendment. There is, moreover, no historical support for the execution of citizens without trial and, after the 14th Amendment, minors are citizens. As in the prior analysis of “cruel,” there is no evolving electoral or legislative standard in this alternative argument. Rather, the Constitution becomes structurally infirm, preventing full execution of State power against the convicted minority. The State becomes custodian of this structural infirmity, leaving an open ended possible future resolution, such as executive clemency or legislative release. The structure of the Constitution determines outcome, not “evolving standards.”
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I again note that I believe another constitutional path precludes State execution entirely, but leave that for another piece. My present focus has been to show how textual inference can lead to conclusions importing neither electoral nor judicial conscience, producing jurisprudence neither strictly conservative nor liberal in any standard sense. “Cruel” cannot of itself prevent execution, but has import on the housing and treatment of prisoners far beyond that of present Supreme Court jurisprudence. Before considering “unusal,” I turn to the DOJ’s intervention in the homeless public sleeping case.
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Where shall the homeless sleep?
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The argument provided by the DOJ in Idaho district court comports quite well with the use of “cruel” herein. Boise forbids sleeping on public land, but the city does not provide adequate housing for its resident homeless population. These surplus homeless cannot trespass onto private property, but public property, they being residents, belongs, in the usual community sense, to them as well. Where shall they sleep? They will be harassed to move prior to sleep, or potentially woken and forced to move. Overall sleep deprived, they will be asked to move with greater frequency, unable to think out their next step. They are trapped, imprisoned; their bodies are, loosely, seized. While this may encourage them to leave Boise, the city cannot expel as such, so the ordinance against sleeping in public space cannot be interpreted to that end. An increasingly difficult mental state is thus induced by the city which the homeless can do nothing about; one must sleep. The city, so State, acts disdainfully on a population trapped by the city’s own act; this disdain is sadistic so cruel under the 8th Amendment.
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The ordinance, by harassing the sleepless, both convicts and punishes them for being there. It is a seizure of the body which makes the body worse, and that is sadistic, so cruel. Again, one cannot argue they might leave the city so are not seized. It is their city under standard definition of public space; they can remain indefinitely, this creating the seizure on the part of the city. If, however, the city expanded its shelter space, an ordinance forcing them nightly into shelters would not violate the 8th Amendment. Nor would the city be in violation if it just let the homeless sleep as they might in public space, even unto death through exposure. It is the combination of forbidding a necessary act without alternative which creates the cruelty violation. Standing by while they die in the cold is not such a violation, for the city is not constraining their action; it is the intervention of the city as harassment which creates the 8th Amendment violation. Progressives may be content that harassment forces shelters, but not that city inaction allows death. The later is not a punishment.
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Changing sleep deprivation to starvation, is the city responsible for feeding them under the 8th Amendment? No, because public space has no food in its standard uses. Preventing theft against food venders is not identical to harassing the sleepless. The State does not own such food, but is obligated to protect its owners from theft, just as the State is obligated to prevent trespass onto private property for sleeping. 8th Amendment cruelty is consequent of State ownership of outdoor space for sleeping denied a population with otherwise no place to go. Again, the city’s dilemma ends if it lets the homeless sleep in freezing weather, for then no State imposed cruelty results. The State is not required to house the homeless; but they cannot make them go way proactively. This later result has a cruelty to it, but it is not a cruelty of the State’s hand. It is a cruelty of life, one which the US Constitution as such does not reach.
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Unusual
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At the Founding, criminal law was of two kinds, statutory and common law. A common law crime is one recognized traditionally without an active statute, referenced via judicial opinions or judicial memory rather than as text, if such there was. These crimes increased in significance at American Independence, for the statutes of the UK as such cease to have authority in the new States, while the common law was recognized as imported from Britain into each colony, so a crime formerly referring to a British statute became a common law crime derived from that statute, if the courts so recognized. Over decades, before independence, the common law of colonies diverged from each other through local judicial decisions, the circumstances of application a product of the local law environment–what other laws might be directed to a case, and how judges delimited application of a common law The common law of New Jersey was not the common law of South Carolina, and to interpret a State’s common law when outsider was an affront. The newly created Federal government, then, could claim no common law imported from the UK, nor a common law summed from the new States. Rather, the Federal government was virgin, created by new States having distinct common laws.
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Yet the Constitution belies these State only monopolies, for it imports common law concepts at several points. 5th Amendment due process certainly included writs of plea to courts, including Habeas Corpus, with Habeas Corpus suspension detailed in the body of the pre-amended Constitution; while common law could not be expressed outside of a State by myths of origin, it was expected to apply, somehow, to the Federal government. 6th Amendment jury trial is similar; juries were ancient at common law, yet the amendment enshrines them in Federal criminal trial. The 7th Amendment does the same for civil trials. What does a Federal court do when common law is evoked? Swift v Tyson (1842) declared that in civil diversity cases (where litigants are residents of different States) Federal courts would make their own common law via experienced cases; but Erie Railroad v Tompkins (1938) reversed Swift, declaring that Federal courts must use the common law in civil cases of the State in which the Court resides. Swift and Erie dealt with civil common law. Federal criminal common law was earlier forbidden by the Supreme Court (United States v Hudson and Goodwin [1812]); a federal crime must be a crime by statute.
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At Founding, the range of federal application of common law was quite murky; in fact, the power of an independent judiciary in what was contested until the Civil War as an exitable confederation was obscure generally. Legislatures, so the newly minted Congress, have the power to alter prior common law, so much of the Bill of Rights is directed against Congress to preserve the protections of prior common law, even if one cannot actually say the Federal government has a common law. Who knew? Even if there was to be no Federal common law, the protections of common law were a core point of contention with the British Crown; post Independence, the States wanted the same protections against any central government voluntarily entered.
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8th Amendment “unusual” is an ingenious protection under this ambiguity of where the common law resides, whether only in States variously or also in the Federal courts. By prohibiting unusual punishments, the amendment looks to the cultural standard of prior common law(s) and statues of States and parental Great Britain. Even though Congress can write its own punishments, the 8th Amendment aligns these punishments per crime with those of the common law past without directly declaring such law part of Federal law. Rather than being an “evolving standard of decency” as evoked to forbid the execution of minors, above, it is retroactive: the fear was that Congress, as a distant, centralized power, would decree harsher or novel penalties for already understood crimes. So the amendment also forbids “excessive fines” and “excessive bail,” these both having either statutory or common law standards in the various States.
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The Supreme Court’s 8th Amendment “evolving standard of decency” has it backwards. Evolution was feared as draconian. But what the Court does get right is that the 8th employs a summed, external standard, just not the one the Court wants: the common law limits of the various States to a nascent Federal law where the standards are external to Constitutional text. A “standard of decency” is naturally legislatively expressed through the selection of representatives. The Bill of Rights, however, is in several amendments devoted to checking the power of Congress as amassed representatives. The 8th is one of these, and it cannot rely on the output of legislatures for its effective power.
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“Unusual” tags a mass of prior law, far from just recent law, to prevent innovation, not encourage innovation through summed State changes leading to new standards. “Unusual” and “excessive” produce proportionality standards. A law cannot have a lower punishment than a lesser included offense; the latter would have to be lowered to achieve proportionality. A mass of law producing a hierarchy of offenses has to keep the hierarchy somewhat stable. But the final offense at the top of that hierarchy, either murder or treason (the one clear Federal death penalty) is not constrained by such proportionality. While lesser included crimes cannot incur death, that does not imply execution is forbidden by the 8th Amendment.
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Dominance produces cruelty as enjoyment. We see this in small to more ways in our own lives, and know of it in greater historical scales. The Stanford Prison experiment of 1971 produced real cruelty through role playing among college students in a handful of days. We, that we claimed human universal, know how to enjoy cruelty under hierarchy. The State’s greatest power is seizure of the body, an absolute dominance which predisposes toward cruelty. The 8th Amendment targets this ready consequence of hierarchy by employing the word “cruelty.” “Unusual” prevents unbridled expansion of punishments. But neither word removes the ultimate seizure, death, from the State’s purview. Dominance under law cannot be avoided, but cruelty, in the hope of the Amendment, can. Execution, in fact penalty for a remarkable number of crimes in the rather prisonless 1780’s, is not at issue in the 8th Amendment.
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This is not to say that the massive founding process producing the 8th, let alone the Constitution, was omnisciently self aware; rather the reverse, for the scope of Federal judicial power and the locus of common law beyond each State was highly ambiguous, perhaps an ambiguity which allowed passage of the compact. The Constitution and its first amendments are not well defined at founding, but this is not to say they are not partly grounded in the meaning of their words. Words placed in uncertain future are not therefore of arbitrary import. Cruelty changes as State intervention in society expands, but this does not in itself remove death as a seizure of body. The only way to remove execution constitutionally is to show words have been repressed in their import, or that inferences from them were not travelled. This I believe the case on State execution. But the path untraveled must be spied and explained why fallow so long. I believe the expansion in historical studies of the law supplies paths unspied so fallow. Simply, all those drafting, debating, voting founders did not, could not, see all the implications of the words they ratified as Constitution, on their own use of these words.
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But, in the matter of death, the pivot is not the 8th Amendment–rather the 1st.
On the Suzuki Court 