Rethinking proportionality under the cruel and unusual punishments clause

Virginia Law Review

Volumn 97, Issue 4, 2011, Pages 899-978

  Stinneford, John F ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 79961239408     PISSN: 00426601     EISSN: None     Source Type: Journal    
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References (239)

1. John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1815-17 (2008)
2. Atkins v. Virginia, 536 U.S. 304, 321 (2002).
3. Roper v. Simmons, 543 U.S. 551, 568 (2005).
4. Kennedy v. Louisiana, 554 U.S. 407, 447 (2008).
5. Graham v. Florida, 130 S. Ct. 2011, 2034 (2010).
6. Editorial, A New Standard of Decency, N.Y. Times, May 18, 2010, at A26
7. Kent Scheidegger, Unaccountable Judicial Activism, Room for Debate (May 17, 2010, 6:27 PM), http://roomfordebate.blogs.nytimes.com/2010/05/17/ redefining-cruel-punishment-for-juveniles/#kent
8. See, e.g., U.S. Dep't of Justice, Office of Justice Programs, Compendium of Federal Justice Statistics, 2004, at 62 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cfjs0404.pdf
9. See, e.g., U.S. Dep't of Justice, Office of Justice Programs, Felony Sentences in State Courts, 2004, at 1 (2007), available at http://bjs.ojp.usdoj. gov/content/pub/pdf/fssc04.pdf
10. Graham, 130 S. Ct. at 2024
11. See also Kennedy v. Louisiana, 554 U.S. 407, 433 (2008)
12. Kennedy v. Louisiana, 554 U.S. 407, 433 (2008)
13. Defendants with Mental Retardation Executed in the United States Since the Death Penalty Was Reinstated in 1976, AdvocacyOne.org, http://www. advocacyone.org/deathpenalty.html
14. See also Kennedy v. Louisiana, 554 U.S. 407, 433 (2008) (
15. Denis Keyes, William Edwards & Robert Perske, People with Mental Retardation are Dying, Legally, 35 Mental Retardation 59, 60 (1997)
16. cited in Atkins v. Virginia, 536 U.S. 304, 316 n.20 (2002)
17. Victor L. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-February 28, 2005, at 3 (2005), http://www.law.onu.edu/faculty-staff/faculty-profiles/coursematerials/streib/ juvdeath.pdf)
18. Roper v. Simmons, 543 U.S. 551, 565 (2005).
19. Enmund v. Florida, 458 U.S. 782, 796 (1982)
20. Coker v. Georgia in 1977.
21. Enmund v. Florida, 458 U.S. 782, 796 (1982)
22. Cf. Solem v. Helm, 463 U.S. 277, 281, 299-300 (1983)
23. Weems v. United States, 217 U.S. 349, 364-67
24. Rachel E. Barkow, The Court of Life and Death: The Two Tracks of ConstitutionalSentencing Law and the Case for Uniformity, 107 Mich. L. Rev. 1145, 1145 (2009).
25. Ewing v. California, 538 U.S. 11, 28, 30 (2003).
26. Lockyer v. Andrade, 538 U.S. 63, 66, 77 (2003).
27. See Cal. Dist. Attorneys Ass'n, Prosecutors' Perspective on California's Three Strikes Law: A 10-Year Retrospective 3, 17 (2004), http://www.cdaa.org/ WhitePapers/ThreeStrikes.pdf.
28. See Lockyer, 538 U.S. at 77.
29. Harmelin v. Michigan, 501 U.S. 957, 996 (1991)
30. See Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: "Proportionality" Relative to What?, 89 Minn. L. Rev. 571, 588-97 (2005).
31. See Ewing v. California, 538 U.S. 11, 27-28 (2003)
32. Harmelin, 501 U.S. at 994
33. See, e.g., Harmelin, 501 U.S. at 986
34. Trop v. Dulles, 356 U.S. 86, 101 (1958)
35. 57 UCLA L. Rev. 365, 368-69 (2009).
36. See, e.g., John Hart Ely, Democracy and Distrust 69 (1980)
37. Foreword E.C. The Vanishing Constitution 103 Harv. L. Rev. 43, 88 n.200 (1989)
38. Tonja Jacobi, The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus, 84 N.C. L. Rev. 1089, 1113 (2006)
39. See Richard M. Ré, Can Congress Overturn Kennedy v. Louisiana?, 33 Harv. J.L. & Pub. Pol'y 1031, 1036 (2010);
40. David A. Strauss, The Modernizing Mission of Judicial Review, 76 U. Chi. L. Rev. 859, 868 (2009)
41. Strauss, supra note 26, at 863 n.8 (citing Roper v. Simmons, 543 U.S. 551, 574-75 (2005)
42. See Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring)
43. see also Ewing v. California, 538U.S. 11, 30 (2003)
44. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 9-34 (2004).
45. See, e.g., Mitchell N. Berman, Originalism is Bunk, 84 N.Y.U. L. Rev. 1, 4 (2009)
46. See, e.g., Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 Va. L. Rev. 677, 699 (2005);
47. Dan Markel, Executing Retributivism: Panetti and the Future of the Eighth Amendment, 103 Nw. U. L. Rev. 1163, 1218-22 (2009).
48. But see Alice Ristroph, Proportionality as a Principle of LimitedGovernment, 55 Duke L.J. 263, 286 (2005)
49. See Meghan J. Ryan, Does the Eighth Amendment Punishments Clause Prohibit Only Punishments that Are Both Cruel and Unusual?, 87 Wash. U. L. Rev. 567, 572 (2010)
50. See Weems v. United States, 217 U.S. 349, 366-67, 370-71 (1910).
51. See Margaret Raymond, "No Fellow In American Legislation": Weems v. United States and the Doctrine of Proportionality, 30 Vt. L. Rev. 251, 293-95 (2006).
52. E.g., Harmelin v. Michigan, 501 U.S. 957, 986 (1991)
53. Rummel v. Estelle, 445 U.S. 263, 275 (1980)
54. See, e.g., O'Neil v. Vermont, 144 U.S. 323, 339-40 (1892) (Field, J., dissenting)
55. See Atkins v. Virginia, 536 U.S. 304, 311 (2002)
56. Solem v. Helm, 463 U.S. 277, 285 (1983)
57. see also Harmelin, 501 U.S. at 1009-10 (White, J., dissenting);
58. Furman v. Georgia, 408 U.S. 238, 279 (1972) (Brennan, J., concurring);
59. Weems v. United States, 217 U.S. 349, 371 (1910).
60. (quoting Hodges v. Humkin, (1615) 80 Eng. Rep. 1015, 1016 (K.B.) (opinion of Croke, J.)). 50 Id. at 285.
61. See Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted": The Original Meaning, 57 Cal. L. Rev. 839 (1969).
62. Harmelin, 501 U.S. at 977.
63. Harmelin, 501 U.S. at 976
64. See Graham v. Florida, 130 S. Ct. 2011, 2028 (2010)
65. (citing Ewing v. California, 538 U.S. 11, 25 (2003) (plurality opinion).
66. See, e.g., Coker v. Georgia, 433 U.S. 584, 598 (1977)
67. E.g., Kennedy v. Louisiana, 554 U.S. 407, 420 (2008)
68. see also Enmund v. Florida, 458 U.S. 782, 798 (1982)
69. Gregg v. Georgia, 428 U.S. 153, 183 (1976)
70. See Graham, 130 S. Ct. at 2028
71. (citing Ewing, 538 U.S. at 25
72. See Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 73 (2005).
73. Louis Michael Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 Yale L.J. 315, 316 (1984).
74. See Albert W. Alschuler, The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts about the Next, 70 U. Chi. L. Rev. 1, 9 (2003).
75. Richard A. Posner, Economic Analysis of Law 170 (2d ed. 1977).
76. See Trop v. Dulles, 356 U.S. 86, 100-01 (1958)
77. see also, e.g., Roper v. Simmons, 543 U.S. 551, 560-61 (2005)
78. Atkins, 536 U.S. at 311-12.
79. See, e.g., Roper, 543 U.S. at 567-68
80. See Lawrence M. Friedman, Crime and Punishment in American History 40 (1993).
81. See Act for the Punishment of Certain Crimes Against the United States, ch. 9, § 8, 1 Stat. 112, 114 (1790).
82. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 370-71 (1989)
83. McCleskey v. Kemp, 481 U.S. 279, 300 (1987);
84. Gregg v. Georgia, 428 U.S. 153, 175-76 (1976).
85. See McCleskey, 481 U.S. at 300.
86. See Roper, 543 U.S. at 575-78;
87. Atkins, 536 U.S. at 316 n.21.
88. See Gregg, 428 U.S. at 181 n.25.
89. See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2033 (2010);
90. See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2033 (2010);
91. per, 543 U.S. at 575- 80.
92. See, e.g., Youngjae Lee, International Consensus as Persuasive Authority in the Eighth Amendment, 156 U. Pa. L. Rev. 63 (2007).
93. See, e.g., Youngjae Lee, International Consensus as Persuasive Authority in the Eighth Amendment, 156 U. Pa. L. Rev. 63 (2007).
94. See Harmelin, 501 U.S. at 961 & n.1.
95. See Ewing, 538 U.S. at 14-15, 30.
96. See Michael Vitiello, Punishing Sex Offenders: When Good Intentions Go Bad, 40 Ariz. St. L.J. 651, 653-54, 671-72 (2008);
97. see also John F. Stinneford, Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity, 3 U. St. Thomas L.J. 559, 561-62 (2006)
98. See U.S. Dep't of Justice, Juvenile Offenders and Victims: 1999 National Report 88-89 (1999) [hereinafter 1999 DOJ Report].
99. Michael S. Moore, Morality in Eighth Amendment Jurisprudence, 31 Harv. J.L. & Pub. Pol'y 47, 63 (2008).
100. Eva S. Nilsen, Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse, 41 U.C. Davis L. Rev. 111, 111, 140-46 (2007).
101. See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2026 (2010);
102. Kennedy v. Louisiana, 554 U.S. 407, 446-47 (2008);
103. Roper v. Simmons, 543 U.S. 551, 564 (2005).
104. See Bradford R. Clark, Constitutional Structure, Judicial Discretion, and the Eighth Amendment, 81 Notre Dame L. Rev. 1149, 1159 (2006).
105. Ewing v. California, 538 U.S. 11 (2003).
106. Lockyer v. Andrade, 538 U.S. 63 (2003).
107. See Ewing, 538 U.S. at 27-28
108. Harmelin v. Michigan, 501 U.S. 957, 1003-04 (1991)
109. See Graham v. Florida, 130 S. Ct. 2011, 2028-30 (2010)
110. Kennedy v. Louisiana, 554 U.S. 407, 441-45 (2008)
111. Roper v. Simmons, 543 U.S. 551, 571 (2005)
112. Atkins v. Virginia, 536 U.S. 304, 319-20 (2002)
113. Enmund v. Florida, 458 U.S. 782, 798-99 (1982)
114. Coker v. Georgia, 433 U.S. 584, 598 (1977)
115. Graham, 130 S. Ct. at 2034.
116. See Exodus 21:25
117. Leviticus 24:19-20.
118. See 4 Thomas Aquinas, Summa Contra Gentiles 304 (English Dominican Fathers trans., Burns Oates & Washbourne 1929) (1264) ("[T]he punishment should correspond with the fault, so that the will may receive a punishment in contrast with that for love of which it sinned.").
119. See Baron De Montesquieu, The Spirit of the Laws 89-90 (Thomas Nugent trans., Hafner Publ'g Co. 1949) (1748).
120. See Cesare Beccaria, On Crimes and Punishments and Other Writings 17 (Richard Bellamy ed., Richard Davies trans., 1995).
121. See 2 William Bracton, On the Laws and Customs of England 299 (Samuel E. Thorne trans., Harvard Univ. Press 1968) (1300).
122. William Blackstone, Commentaries on the Laws of England 15 (Wayne Morrison ed., Cavendish Publ'g 2001) (1765-1769) ("It is . . . absurd and impolitic to apply the same punishment to crimes of different malignity.").
123. Solem v. Helm, 463 U.S. 277, 284-86 (1983);
124. See William McKechnie, Magna Carta: A Commentary on the Great Charter of King John 285 (1914).
125. Sir Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I, at 514 (Glasgow, James Maclehose & Sons 2d ed. 1898) [hereinafter Pollock & Maitland].
126. See A.E. Dick Howard, Magna Carta: Text and Commentary 5-6 (1964).
127. J.C. Holt, Magna Carta 231 (1965).
128. See Anthony Fitz-Herbert, The New Natura Brevium 167-71 (reprinted London 1687) (1534);
129. Close Rolls 66, m.7d, translated and reprinted in part in F. Thompson, The First Century of Magna Carta 46 (1925).
130. Matthew Paris, English History from the Year 1235 to 1273, at 444 (J.A. Giles trans., London, Selden Society 1854).
131. Le Gras v. Bailiff of Bishop of Winchester, Y.B. 10 Edw. 2, pl. 4 (C.P. 1316), reprinted in 20 Selden Society 3 (1934).
132. See The Case of William Earl of Devonshire, (1689) 11 How. St. Tr. 1353-72 (K.B.). (1615) 80 Eng. Rep. 1015 (K.B.).
133. An Act Declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne (1688), in 6 Statutes of the Realm 142, 143 (1819) [hereinafter 1688 Act];
134. See, e.g., Sir David Lindsay Keir, The Constitutional History of Modern Britain Since 1485, at 267-68 (9th ed. 1969);
135. Thomas Pitt Taswell-Langmead, English Constitutional History: From the Teutonic Conquest to the Present Time 507 (Philip A. Ashworth ed., 6th ed. 1905)
136. Harmelin v. Michigan, 501 U.S. 957, 974 (1991).
137. The trials in which Oates gave perjured testimony relating to this "plot" are described in 1 James Fitzjames Stephen, A History of the Criminal Law of England 383-404 (London, MacMillan & Sons 1883).
138. See The Trial of Titus Oates, (1685) 10 How. St. Tr. 1079-1330 (K.B.);
139. See 10 H.C. Jour. 246, 249 (1689). The House of Lords refused to grant the appeal, however, because it thought Oates was such a bad person. See id. at 249.
140. 10 H.C. Jour. 247 (1689) ("[T]he Commons had a particular Regard to these Judgments, amongst others, when that Declaration [the Cruel and Unusual Punishments Clause] was first made; and must insist upon it, That they are erroneous, cruel, illegal, and of ill Example to future Ages.").
141. See Harmelin v. Michigan, 501 U.S. 957, 973-74 (1991).
142. 14 H.L. Jour. 228 (1689).
143. Harmelin, 501 U.S. at 974.
144. 10 H.C. Jour. 249 (1689).
145. 14 H.L. Jour. 228 (1689).
146. UK National Archives Currency Converter, http://www.nationalarchives.gov. uk/currency/default0.asp#mid (last visited Jan. 28, 2011).
147. Google Finance Currency Converter, http://www.google.com/finance?q= GBPUSD(last visited Feb. 18, 2011).
148. The Earl of Devonshire's Case, 11 How. St. Tr. at 1362.
149. 14 H.L. Jour. 228 (1689)
150. 10 H.C. Jour. 249 (1689).
151. See Harmelin v. Michigan, 501 U.S. 957, 975 (1991).
152. Harmelin, 501 U.S. at 976.
153. See State v. Norris, 2 N.C. (1 Hayw.) 429, 440-41 (Super. L. & Eq. 1796) ("If the [provocation caused by the victim was such] as would in ordinary tempers have produced only a slight resentment, not rising so high as to aim at the life of the offender, but only to a punishment proportionable to the offence, and yet the person offended has attacked and beaten the other, in such a manner or with such a weapon as shews an intent to kill, and not only to chastise; and in beating he has killed the other, the law will deem it murder: because the beating in a cruel or unusual manner, or with such a weapon, are circumstances attending the fact which shew the heart of the slayer to have been more than ordinarily cruel and regardless of another's woe." (quoting the argument of the Solicitor General));
154. Jacob v. State, 22 Tenn. (3 Hum.) 493, 496 (1842) ("Express malice is, where one with a sedate, deliberate mind and formed design, kills another . . . . Also, if upon a sudden provocation, one beats another, in a cruel and unusual manner, so that he dies, though he did not intend his death.");
155. McWhirt v. Commonwealth, 44 Va. (3 Gratt.) 594, 594 (Gen. Ct. 1846) ("Murder is the unlawful killing of any person with malice aforethought: and malice is either express; as where one person kills another with a sedate, deliberate mind, and formed design; such formed design being evidenced by external circumstances, discovering the inward intention . . . . And so, where, upon a sudden provocation, one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice: that is, by an express evil design, the genuine sense of malitia.").
156. Chase v. State, 46 Miss. 683, 702 (1872) (detailing an instruction that the jury consider whether "the homicide [was] committed by accident and misfortune, in the heat of passion, upon sudden and sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner, and thereupon excusable") (internal quotations omitted);
157. People v. Rector, 19 Wend. 569, 607 (N.Y. Sup. Ct. 1838) ("[W]hen the killing is in a heat of passion, but in a cruel or unusual manner, or by a dangerous weapon, the crime may be only manslaughter: but when perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, it will be murder.");
158. People v. Sherry, 2 Edm. Sel. Cas. 52, 53 (N.Y. Sup. Ct. 1849) (In a case involving a drunken fight in which the defendant killed the victim by knocking him down and jumping on his chest, "The Judge charged the jury that the main question was, whether the offence was murder or manslaughter in the second degree. Murder was effecting death with intention to kill. Manslaughter in the second degree was effecting death in a cruel and unusual manner, without an intention to kill.");
159. Bull v. Commonwealth, 55 Va. (1 Gratt.) 613, 616 (1857) (affirming conviction where the trial court instructed that "if the jury are satisfied from the evidence that the manner of inflicting the blows was cruel and unusual, and exceeded in number and violence what was necessary to repel the deceased, and the deceased died of such beating, then the prisoner is guilty of voluntary manslaughter").
160. See 1 Matthew Hale, et al., Historia Placitorum Coronae: The History of the Pleas of the Crown 454 (1st American ed. 1847).
161. See Oliver v. State, 39 Miss. 526, 539 (1860) (holding that a master would be guilty of "cruel and unusual" murder or manslaughter if he wantonly killed a slave using force greater than "the necessity occasioned by unlawful resistance to lawful authority");
162. Kelly v. State, 11 Miss. (3 S. & M.) 518, 526 (1844) (noting that the criminal prohibition of cruel and unusual punishment of slaves derives from the common law rule that masters could punish servants but only with moderation);
163. cf. Mann v. Trabue, 1 Mo. 709, 710 (1827) (addressing a claim in a civil suit that a person who had hired out a slave had killed her through the use of "cruel and unusual" force).
164. See Burrmeister v. Seyer, 2 Haw. 255, 258 (1860) ("Had the beating inflicted upon Burrmeister by the officers been merited by reason of his insubordination, or other misconduct, it could not perhaps be designated as cruel or unusual, but as the case stands, it was harsh and inexcusable.");
165. United States v. Trice, 30 F. 490, 491-95 (D. Tenn. 1887) (holding that a federal statute forbidding ship's officers from imposing "cruel and unusual punishment" on seamen applied to anyone in a position of authority who inflicted an excessive beating on an inferior as punishment for disciplinary infraction);
166. cf. United States v. Rauscher, 119 U.S. 407, 410 (1886) (deciding whether the federal courts had jurisdiction, in light of an extradition treaty with Great Britain, to hear a case alleging that a ship's second mate had assaulted a crew member, and had thereby inflicted a cruel and unusual punishment on him).
167. See Shirley v. Bd. of Trs. of Cottonwood Sch. Dist., 31 P. 365, 366 (Cal. 1892) ("Said discharge of plaintiff was for the alleged cause of . . . cruel and unusual punishment of a pupil, but plaintiff . . . did not punish said child either in a cruel or unusual manner, nor for any purpose except for just cause, and to a moderate extent . . . .").
168. See In re Kottman, 20 S.C.L. (2 Hill) 363, 363 (1834) (holding that in a custody case, "to show that the Court ought not to interpose in favor of the father, affidavits were read, that the father had beaten this son in a cruel and unusual manner without any just cause").
169. See Harmelin v. Michigan, 501 U.S. 957, 975-76 (1991).
170. For example, the Virginia House of Burgesses described a British plan to try American protesters in England, rather than in the vicinage of the offense as "new, unusual . . . unconstitutional and illegal." Journals of the House of Burgesses of Virginia, 1766-1769, at 215 (John Pendleton Kennedy ed., Richmond 1906) (1769).
171. Similarly, the Declaration of Independence complained about Britain's effort to disrupt legislative assemblies by calling them to meet at "places unusual." The Declaration of Independence para. 6 (U.S. 1776). The practice of convening tribunals and legislative assemblies at "unusual" or noncustomary locations was itself contrary to the common law.
172. See 2 William Hawkins, A Treatise of the Pleas of the Crown 55-56 (London, E. and R. Nutt 1739).
173. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 170-72 (photo. reprint 2d ed. 1974) (1968) [hereinafter Elliot's Debates].
174. The Records of the Federal Convention of 1787, at 637-40 (Max Farrand ed., 1911) [hereinafter Farrand].
175. See U.S. Const. art. I, § 9, cl. 3. Because this Clause is worded as a limitation on Congress's legislative power, Henry appears to have been concerned that the President could use the Treaty Power to circumvent it.
176. See U.S. Const. amend. IX ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.").
177. 5 Va. (1 Call) 555 (1799).
178. 10 Ky. (3 A.K. Marsh.) 70 (1820).
179. 27 Va. (6 Rand.) 694 (Va. Gen. Ct. 1828)
180. see also Ex parte Hickey, 12 Miss. (4 S. & M.) 751, 778 (Miss. Err. App. 1844) (striking down a statute giving courts an unlimited power to imprison people for contempt, noting that "[i]t is a maxim of law that where a discretion is allowed courts in the punishment of defined offenses, that discretion must be regulated by law. But in this instance, the law, as claimed, sets to itself no bounds, and, under the influence of strong passions, punishment may be inflicted to a cruel, an unusual and excessive degree").
181. 5 Va. (1 Call) at 557.
182. 10 Ky. (3 A.K. Marsh.) at 74-75.
183. see also Garcia v. Territory, 1 N.M. (Gild., E.W.S. ed.) 415, 418 (1869) ("In many of the states the practice of whipping criminals convicted of theft has prevailed for over fifty years, without any doubt as to its constitutionality.").
184. Commonwealth v. Wyatt, 27 Va. (6 Rand.) 694, 700 (Va. Gen. Ct. 1828) ("[The authority to enact cruel and unusual punishments,] being prohibited to the Legislature[,] cannot by it be delegated to the Courts.").
185. Statistics as to Labor, N.Y. Times, Jan. 24, 1897, available at http://query.nytimes.com/mem/archive-free/pdf?-r=1&res= 9E00E6DA1E3DE433A25756C2A9679C94669ED7CF.
186. Harmelin v. Michigan, 501 U.S. 957, 982 (1991).
187. See Simon Devereaux, Imposing the Royal Pardon: Execution, Transportation, and Convict Resistance in London, 1789, 25 Law & Hist. Rev. 101, 123 (2007) (describing the publication of Beccaria's work as causing a "great burst of discussion regarding law reform" in England).
188. See Deborah A. Schwartz & Jay Wishingrad, Comment, The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine, 24 Buff. L. Rev. 783, 813-23 (1975) ("The force of Beccaria's treatise On Crimes and Punishments was felt as much in America as in Europe.").
189. Pa. Const. of 1776, § 38.
190. See S.C. Const. of 1778, art. XL.
191. See N.H. Const. of 1784, art. I, § XVIII ("All penalties ought to be proportioned to the nature of the offence. No wise legislature will affix the same punishment to the crimes of theft, forgery and the like, which they do to those of murder and treason; where the same undistinguishing severity is exerted against all offences; the people are led to forget the real distinction in the crimes themselves, and to commit the most flagrant with as little compunction as they do those of the lightest dye: For the same reason a multitude of sanguinary laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate, mankind.");
192. Ohio Const. of 1802, art. VIII, § 14 ("All penalties shall be proportioned to the nature of the offence. No wise Legislature will affix the same punishment to the crimes of theft, forgery, and the like, which they do to those of murder and treason. When the same undistinguished severity is exerted against all offences, the people are led to forget the real distinction in the crimes themselves, and to commit the most flagrant, with as little compunction as they do the slightest offences. For the same reasons, a multitude of sanguinary laws are both impolitic and unjust; the true design of all punishment being to reform, not to exterminate mankind.").
193. See Ga. Const. of 1868, art. I, §§ 16, 21 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted, nor shall any person be abused in being arrested, whilst under arrest, or in prison . . . . All penalties shall be proportioned to the nature of the offence.");
194. Ind. Const. of 1816, art. I, §§ 15-16 ("Excessive bail shall not be required; excessive fines shall not be imposed; nor cruel and unusual punishments inflicted . . . . All penalties shall be proportioned to the nature of the offence.");
195. Me. Const. of 1819, art. I, § 9 ("Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offence; excessive bail shall not be required nor excessive fines imposed, nor cruel nor unusual punishments inflicted.");
196. R.I. Const. of 1842, art. I, § 8 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted; and all punishments ought to be proportioned to the offence.");
197. W.Va. Const. of 1861-1863, art. II, § 2 ("Excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted. Penalties shall be proportioned to the character and degree of the offence.").
198. See id. at 212; see also Thomas Jefferson, A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital, in 2 The Papers of Thomas Jefferson 492-504 (Julian P. Boyd ed., 1950).
199. Virginia Declaration of Rights § 9 (1776), reprinted in 1 The Founders' Constitution 6 (Philip B. Kurland & Ralph Lerner eds., 1987).
200. Act of Feb. 26-Mar. 1, 1819, § 48, reprinted in Digest of the Laws of Virginia 269 (Joseph Tate ed., Richmond, Smith and Palmer, 2d ed. 1841).
201. Act of Apr. 30, 1790, ch.9, § 8, 1 Stat. 112, 113-14 (1790).
202. See Harmelin v. Michigan, 501 U.S. 957, 980-81 (1991).
203. Act of Apr. 30, 1790, ch.9, § 2, 1 Stat. at 112.
204. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 328-29 (Boston, Little, Brown & Co. 1868).
205. Joseph Story, Commentaries on the Constitution of the United States § 1896, at 750-51 (Boston, Hilliard, Gray & Co. 1833) (footnote omitted).
206. See Benjamin L. Oliver, The Rights of an American Citizen 186 (Boston, Marsh, Capen & Lyon 1832).
207. See James Bayard, A Brief Exposition of the Constitution of the United States 153-54 (Philadelphia, Hogan & Thompson, 2d ed. 1840);
208. James Kent, Commentaries on American Law 10-11 (New York, O. Halsted 1827) ("But while cruel and unusual punishments are universally condemned, some theorists have proposed the entire abolition of the punishment of death[] . . . .").
209. See Michael Moore, Placing Blame: A General Theory of the Criminal Law 93 n.19 (1997) ("The main problem with the pure utilitarian theory of punishment is that it potentially sacrifices the innocent in order to achieve a collective good.");
210. Kent Greenawalt, Punishment, in 4 Encyclopedia of Crime and Justice 1336, 1341 (Sanford H. Kadish ed., 1983) (noting that the most "damaging" critique of utilitarianism is that it "admits the possibility of justified punishment of the innocent").
211. Sir Edward Coke, The Third Part of the Institutes of the Laws of England 6 (4th ed. London; Crooke, Leake, Roper, Tyton, Dring, Collins, Place, Starkey, Baffet, Pawlett, Heyrick & Dawes 1669).
212. See Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401 (1958) (asserting that the Constitution's criminal procedural safeguards make sense only if the function of the criminal law is to express the "community's solemn condemnation of the accused as a defaulter in his obligations to the community").
213. 10 Ky. (3 A.K. Marsh.) 70 (1820).
214. 10 Ky. (3 A.K. Marsh.) at 74.
215. See Jeffrey Fagan & Tracey L. Meares, Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities, 6 Ohio St. J. Crim. L. 173, 180 (2008) ("[T]he formal emergence of a deterrence framework for punishment is often identified with the writings of Cesare Beccaria . . . .").
216. Some scholars have argued that the idea that a person should be punished no more than necessary to achieve a consequentialist goal such as deterrence should form part of the constitutional standard under the Cruel and Unusual Punishments Clause. See, e.g., Michael J. Perry, Is Capital Punishment Unconstitutional? And Even if We Think It Is, Should We Want the Supreme Court to So Rule?, 41 Ga. L. Rev. 867, 881-90 (2007).
217. See, e.g., Bruce A. Ackerman, Social Justice in the Liberal State 343 (1980) ("[T]here is nothing the utilitarian will not countenance in his single-minded search for the collective happiness.").
218. In the early nineteenth century, African Americans were often the targets of such heightened punishment. For example, as discussed above, the Kentucky Court of Appeals struck down a statute that made it a crime for an African American to raise his hand to a white person, even in self-defense. See Ely v. Thompson, 10 Ky. (3 A.K. Marsh.) 70, 70-71, 74-76
219. Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 447-48 (1824), the state larceny statute was amended to impose a sentence of whipping, enslavement, and banishment on free persons of color who committed this crime, whereas white offenders faced a maximum punishment of three years imprisonment. Laurence Claus has argued that the true purpose of the Cruel and Unusual Punishments Clause is to invalidate discriminatory punishments such as these.
220. See Laurence Claus, The AntidiscriminationEighth Amendment, 28 Harv. J.L. & Pub. Pol'y 119, 121 (2004). Claus rejects the argument that the Clause was intended to prohibit excessive punishments that are not also discriminatory.
221. See Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose?, 31 Harv. J.L. & Pub. Pol'y 35, 38-39 (2008).
222. See Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 Tex. L. Rev. 799, 807 (2003) (describing moral panic as a situation in which "media, politicians, and the public reinforce each other in an escalating pattern of alarmed reaction to a perceived social threat. The elements of a moral panic include an intense community concern (often triggered by a publicized incident) that is focused on deviant behavior, an exaggerated perception of the seriousness of the threat and the number of offenders, and collective hostility toward the offenders, who are perceived as outsiders threatening the community." (footnotes omitted)).
223. See Michael M. O'Hear, Perpetual Panic, 21 Fed. Sent'g Rep. 69, 73 (2008).
224. 14 H.L. Jour. 228 (1689).
225. See Ely v. Thompson, 10 Ky. (3 A.K. Marsh.) 70, 70 (involving a statute that abrogated the common law defense of self-defense);
226. Jones v. Commonwealth, 5 Va. (1 Call) 555, 555 (holding that the punishment violated the common law rule against joint fines).
227. See Commonwealth v. Hitchings, 71 Mass. (5 Gray) 482, 486 (1855);
228. Barker v. People, 20 Johns. 457 (N.Y. Sup. Ct. 1823). These cases are discussed in detail supra Subsection II.C.2.b.
229. See Robinson v. California, 370 U.S. 660 (1962).
230. See Stephen J. Morse, Delinquency and Desert, 564 Annals Am. Acad. Pol. & Soc. Sci. 56, 57 (1999).
231. See Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 Notre Dame L. Rev. 89, 102 (2009).
232. See Ewing v. California, 538 U.S. 11, 30-31 (2003)
233. Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring).
234. See Brief of Petitioner at 9, Harmelin v. Michigan, 501 U.S. 957 (1991) (No. 89- 7272), 1990 WL 515104.
235. See Harmelin, 501 U.S. at 1026-27 (White, J., dissenting)
236. Brief of Petitioner at 17A
237. Harmelin v. Michigan, 501 U.S. 957 (1991) (No. 89-7272), 1990 WL 515104 (table setting forth sentences authorized for the same crime in other states).
238. See Brief of Petitioner at 17A, Harmelin v. Michigan, 501 U.S. 957 (1991) (No. 89-7272), 1990 WL 515104.
239. The result in Coker would have been more plausible had the case been decided today, assuming that no offenders had been executed in the intervening years. As noted above, when a practice falls out of usage for decades, it becomes "unusual" and may be struck down as cruel and unusual if the legislature seeks to reintroduce it. At the time Coker was decided, the true gap between the last execution for rape and the imposition of Coker's sentence was less than ten years, since there was a gap of several years after the Court's decision in Furman v. Georgia, 408 U.S. 238 (1972), during which time the death penalty itself was forbidden throughout the United States.