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Article Excerpt
Introduction
I. A Brief History of Eighth Amendment Interpretation A. Early Interpretations of "Cruel and Unusual" Punishments B. Modern Interpretations of "Cruel and Unusual" Punishments II. The Principles and Practices of Proportionality and Conditions Litigation A. The Dissonant Elements of Modern Proportionality and Conditions of Confinement Jurisprudence B. The Practical Ramifications of the Dissonant Elements of Conditions and Proportionality Litigation III. Bringing Proportionality Analysis into Conditions of Confinement Litigation A. The Broad Advantages of Proportionality Analysis B. Three Specific Illustrations of the Potential Link Between Proportionality and Conditions Litigation 1. Proportionality and Disciplinary Measures 2. Revisiting Deference in Conditions of Confinement 3. Proportionality and Offender-Specific Conditions of Confinement Conclusion
INTRODUCTION
The Eighth Amendment, by its plain terms, prohibits "excessive" fines and "cruel and unusual punishments." (1) This Article addresses two aspects of Eighth Amendment jurisprudence: classic conditions of confinement litigation (2) and sentencing proportionality litigation, (3) both of which spring from judicial interpretation of the "cruel and unusual punishment" clause. Although these aspects of Eighth Amendment jurisprudence emerged together at the beginning of the twentieth century, they have increasingly diverged in the past forty years. This Article explores whether proportionality litigation has anything to offer prison conditions jurisprudence. In many ways, this is a strange choice of topics. Proportionality litigation in the federal courts has not been particularly successful, especially in challenging non-capital sentences. (4) Further, the critical scholarly commentary regarding conditions of confinement and proportionality jurisprudence has focused on tweaking each particular doctrinal area rather than trying to bridge the differences between these strands of Eighth Amendment jurisprudence. (5) For example, in the area of conditions of confinement litigation, commentators have suggested modifying the "deliberate indifference" test used to review conditions of confinement challenges, (6) or expanding the Eighth Amendment conditions of confinement rubric to embrace new kinds of constitutional claims. (7) In proportionality jurisprudence, scholars have argued that certain punishments should be considered unconstitutionally disproportionate, (8) or that the Supreme Court's proportionality analysis itself is flawed. (9) Some commentators have also argued for particular ways in which sentencing decisions could be informed by nontraditional considerations, without changing the contours of proportionality review. (10) This Article takes a different tack, albeit with caution. Comparing the two doctrines, I draw connections that suggest ways that proportionality analysis could invigorate conditions litigation. In particular, I argue that, with respect to twin confounding aspects of conditions litigation--deference to prison administrators and the need to establish culpable intent of prison officials--there is some value added by recognizing and effectuating some of the principles at stake in proportionality litigation. (11)
Part I of this Article begins with a discussion of the history of Eighth Amendment litigation, focusing on state and federal courts that have addressed both proportionality and conditions challenges. Part II examines the current divergence between conditions of confinement and proportionality jurisprudence. Finally, in Part III, I suggest how proportionality jurisprudence and conditions of confinement litigation might be reunited, why such a change might be positive, and what the potential drawbacks may be.
I. A BRIEF HISTORY OF EIGHTH AMENDMENT INTERPRETATION
A. Early Interpretations of "Cruel and Unusual" Punishments
The purposes of the Framers of the Eighth Amendment, and the meaning of the "cruel and unusual" punishment clause, have never been clear. The Amendment was based on article I, section 9 of the Virginia Declaration of Rights, which had adopted the language directly from the English Bill of Rights. (12) There has been some disagreement as to whether the Framers intended for the clause to have the same meaning as the language in the English Bill of Rights, (13) but there was little contemporaneous debate of the clause's meaning during the Constitutional Convention or during the debates over ratification of the Bill of Rights. (14)
For all of the nineteenth century, Eighth Amendment jurisprudence was underdeveloped in the federal courts. In large part, this was because the Supreme Court held that the Amendment applied only to national, not state, legislation, (15) and that various challenges brought against particular punishments were insubstantial. (16) At most, the early federal cases suggested that the Eighth Amendment prohibited "torture ... and all others in the same line of unnecessary cruelty," (17) but that judicial deference to legislative judgments about the appropriateness of particular punishment was nearly insurmountable. (18)
The federal government was not alone in prohibiting cruel and unusual punishments, however. Many states had adopted the same language from Virginia's Declaration of Rights, sometimes prohibiting cruel or unusual punishment instead of cruel and unusual punishment. (19) State courts interpreting their state constitution's analog (and, in some cases, precursor) to the Eighth Amendment were generally in agreement with their federal cousins. Thus, many state courts exhibited nearly absolute deference to legislative judgments regarding the length of sentences, and only hinted at the possibility that courts might intervene to find a particular mode of punishment unconstitutional. (20) In so doing, most states agreed that whether a punishment was "cruel" was judged by comparison to the punishments that were tolerated at common law, while the word "unusual" referred to how the penalty compared to the practices in other states or other "civilized" countries. (21) Thus, many state courts upheld punishments that fell within a common understanding of "cruel" or "unusual," but which did not meet the more specific requirement of having been rejected at common law. The New York State Court of Appeals's resolution of a challenge to death by electrocution exemplified this approach:
Punishment by death, in a general sense, is cruel; but, as it is authorized and justified by a law adopted by the people as a means to the end of the better security of society, it is not cruel, within the sense and meaning of the Constitution. The infliction of the death penalty through a new agency is, of course, unusual; but, as death is intended as the immediate sequence of the mechanical application prescribed, it is not unusual in the sense that some certainly prolonged or torturous procedure would be understood to be. (22)
Contrary to the uniform position of the federal courts, however, states were not unanimous. A handful of states appeared to concede that excessive punishments, even if expressed in terms of years, could violate the constitutional prohibition. (23) Further, a surprising number of state courts struck down sentences, expressed both as modes of punishment and terms of years in prison, for being excessive. In some of these cases, the punishment at issue was akin to life imprisonment without the possibility of parole. (24) But in other cases the term of imprisonment was much less, (25) and the modes of punishment found unconstitutional ranged from lashes, the ducking stool, and seizure of property. (26)
Thus, at the end of the nineteenth century, challenges to punishments based on the Eighth Amendment, or a state constitutional analog, were rarely successful, in large part because of the deference afforded legislatures to make judgments regarding the appropriateness of particular punishments. To the extent that any doctrine had developed to evaluate the constitutionality of particular punishments, several sources of authority, none dispositive, had emerged, including the practices of the Framers, their contemporaries, other states, and other "civilized" nations, as well as the extent to which a particular punishment was repugnant to popular conceptions of justice.
At the time that a doctrine of excessiveness or proportionality was developing in the area of just punishment, little to no constitutional challenges had been brought to the conditions under which convicted individuals were imprisoned. This should not be surprising; during the nineteenth century, even as courts considered constitutional challenges to the length of imprisonment, the conditions experienced therein were considered out of bounds. Prisoners were considered to be "slaves of the State," (27) and any rights they retained to decent treatment while incarcerated came from state and local laws, not the Constitution. (28)
B. Modern Interpretations of "Cruel and Unusual" Punishments
Joining the minority of state supreme courts which had struck down sentences for excessiveness, the United States Supreme Court advanced a more rigorous interpretation of the Constitution's cruel and unusual punishment clause in its 1910 decision in Weems v. United States. (29) In Weems, the Court for the first time struck down as excessive a sentence imposed by a court in the Philippines for falsifying a public and official document. (30) The trial court had sentenced the defendant, a Coast Guard official, to fifteen years imprisonment, as well as to an additional punishment known as cadena temporal. (31) Those individuals sentenced to cadena temporal were required, pursuant to statute, to engage in "hard labor," (32) were chained at the ankle and wrist at all times, and were deprived of certain rights and privileges even after release from prison. (33) Because the Court viewed the sentence as excessive, especially compared to sentences for more serious crimes, it found that the statute fixing the sentence reflected "more than different exercises of legislative judgment" and that it instead imposed cruel and unusual punishment under the meaning of the Eighth Amendment. (34) The Court notably declined to consider the fixed imprisonment term of the sentence separately from the conditions of confinement imposed by the cadena temporal sentence, because they had been imposed pursuant to statute, and therefore had to be considered jointly as punishment. (35)
Although Weems embraced a substantively novel approach to Eighth Amendment questions by breaking with the traditional view that it only prohibited punishments deemed "barbarous" by the Framers, (36) after Weems, the Supreme Court added little to Eighth Amendment jurisprudence for some years. This is not to say that, during this time, no cases offered interpretations of the federal and state prohibitions of cruel and unusual punishments. State and lower federal courts applied Weems in numerous novel ways, from ordering that a prisoner be set free rather than be returned to experience cruel and unusual punishment in Georgia's prison system; (37) finding vasectomy to be an excessive punishment for rapists (38) or recidivist felons; (39) holding life imprisonment to be a disproportionate punishment for "committing lewd and lascivious acts upon and with the body of a female child under the age of sixteen years" (40) or for assault with intent to commit rape; (41) and finding a sentence of four years for assault with a deadly weapon to be excessive. (42)
The Supreme Court, however, did not address a substantive Eighth Amendment claim until 1958, in Trop v. Dulles, (43) almost fifty years after Weems. In Trop, the Supreme Court again struck down a punishment as "cruel and unusual." The statute that was invalidated authorized federal courts to impose denationalization as a punishment for military desertion, a penalty that the Court found to be repugnant to Eighth Amendment principles and international law--and what a plurality of the Court referred to as "evolving standards of decency." (44) This rubric, which self-consciously allowed for interpretive change over time, would come to be the centerpiece of proportionality analysis.
In some respects, the dearth of Eighth Amendment interpretation from Weems to Trop can be attributed to the Court's selective incorporation doctrine, under which the Eighth Amendment was not applied to the states until 1962. (45) Soon after the Eighth Amendment's incorporation, challenges were brought against capital punishment in particular, with brief initial success. (46) In these early challenges, Weems and its more recent progeny, Trop, were treated as the definitive precedent for understanding the meaning of the Eighth Amendment. (47)
This treatment continued in Estelle v. Gamble, (48) the first modern case to challenge prison conditions alone, separate and apart from a criminal sentence. Like the cases resolving challenges to capital punishment, Estelle looked to both Weems and Trop to establish that the Eighth Amendment applied to more than "physically barbarous punishments," but also to punishments incompatible with "evolving standards of decency" or involving the "unnecessary and wanton infliction of pain." (49) With these standards in mind, the Estelle Court held that the government had some obligation to provide medical care to prisoners, because the absence of such care could "result in pain and suffering which no one suggests would serve any penological purpose." (50) Such deprivations of medical care that amounted to "deliberate indifference to serious medical needs" were equivalent, in the Court's view, to unnecessary infliction of pain. (51)
Estelle is significant in one way that is familiar to the participants in this conference--it explicitly held that conditions of confinement imposed by prison officials rather than by statute can constitute "punishment" under the Eighth Amendment. (52) At the same time, however, Estelle distinguished conditions of confinement claims from claims that a punishment was disproportionate under the Eighth Amendment. (53) Thus, Estelle expanded the ability of prison advocates to use Eighth Amendment standards to challenge particular conditions of confinement in absolute terms--that is, to condemn particular conditions for all time and for any class of prisoner. Yet it also drew a line that severed sentences--whether terms of years or capital punishment--from conditions of confinement for the purpose of Eighth Amendment analysis, a line that had been obscured in Weems and post-Weems lower court cases.
This line was maintained and expanded by the post-Estelle decisions, both in the area of proportionality challenges and in conditions of confinement litigation. Thus, proportionality jurisprudence has been limited to cases involving challenges to death sentences (54) or fixed periods of imprisonment, (55) while Estelle's formulation has been applied to conditions of confinement claims alleging, for example, overcrowding (56) or excessive forces. (57) The standard for conditions of confinement is Estelle's "deliberate indifference" standard, which requires that a prisoner show that the prison official had a sufficiently culpable state of mind where the "pain inflicted is not formally meted out as punishment by the statute or the sentencing judge...." (58) The standard for proportionality analysis has focused on the gross proportionality of sentences, in which the severity of a sentence is compared to the seriousness of the offender's crime. (59) Many factors contribute to the proportionality analysis, including how the punishment fits with different penological theories, the types of punishment meted out by sovereign states and even internationally, and the court's own subjective evaluation of proportionality. (60) In all of these and other cases, Estelle's conditions of confinement standard is treated distinctly from Weems' proportionality analysis. (61)
Thus, modern Eighth Amendment jurisprudence is composed of several distinct strands, two of which are relevant to this paper. First, proportionality challenges to sentences of death or a term of years of imprisonment are brought by criminal defendants who allege that a sentence is excessive in relation to the seriousness of a criminal offense. (62) Second, challenges to particular conditions of confinement are judged by whether the conditions are reasonably connected to legitimate penological interests or, instead, inflict unnecessary pain and suffering. (63) Proportionality analysis asks whether the sentence imposed on a defendant is a proper "fit" for the offense of conviction--by definition, some sentences will be constitutional as applied to one set of defendants, but prohibited as applied to a different set of defendants. Conditions of confinement...
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