Cruel and Unusual Federal Punishments

Michael J.Z. Mannheimer, Salmon P. Chase College of Law

Abstract

In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct. This is the result of the confluence of two trends. First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court. Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.

Virtually all federal defendants who have challenged their sentences as “cruel and unusual punishment” in violation of the Eighth Amendment have failed. This is not surprising. The Supreme Court jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Federal courts accordingly find themselves applying a deferential standard designed in large part to safeguard the values of federalism in cases where those values do not call for deference.

The task of this Article is to re-discover the “pure” Eighth Amendment, unmediated by the Fourteenth. The main purpose of the Cruel and Unusual Punishments Clause’s ancestor in the English Bill of Rights was to prevent the imposition of punishment harsher than that allowed by common law for the same offense. However, as adapted for usage in our own Eighth Amendment, two accommodations had to be made: one to account for the transition from a system founded on principles of legislative supremacy to one founded on principles of popular sovereignty; and one to account for the transition from a system of unitary sovereignty to one of dual sovereignty. The accommodation for popular sovereignty is a relatively straightforward recognition that the Clause had to apply to legislators as well as judges. The accommodation for dual sovereignty is more difficult and requires an appreciation of the role of the Anti-Federalists in the adoption of the Bill of Rights. The Eighth Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-Federalists to secure individual rights through the preservation of a robust form of state sovereignty. Moreover, the Anti-Federalists, and their political heirs, the Republicans, rejected a “pre-realist” vision of common law in favor of an approach that recognized the common law as varying from State to State. Thus, the Anti-Federalists took a decidedly State-centered and State-specific approach to the common-law rights that the Eighth Amendment was designed to encapsulate. And the views and general outlook of the Anti-Federalists are critical to a complete understanding of the Bill of Rights, for it was they who won the concession of the adoption of the Bill as the price of union.

This contextualized account of the ratification of the Eighth Amendment evidences a design to limit the power of the federal government to inflict punishment for crimes to the same extent that the States limited their own power to punish. That is to say, whether a federal punishment for a crime is “cruel and unusual” can be answered only in reference to the punishment for the same offense meted out by the States. Moreover, the Anti-Federalists’ views on the nature of the common law indicate that the appropriate comparator is the State where the criminal conduct occurred, not the States generally. But, in either event, the standard for determining whether a federal sentence is “cruel and unusual” ought to be far more stringent than that used in reviewing Eighth and Fourteenth Amendment challenges to State sentences.