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Article Excerpt
The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. The Court does not insist on any of these requirements in noncapital cases.
This Article argues for the abandonment of this two-track approach to sentencing. It finds no support in the Constitution and the functional arguments given by the Court to support its capital decisions apply with equal force to all other criminal punishments. But it is not just the Court's poor legal reasoning that makes its sentencing jurisprudence misguided. It has also been a policy failure for capital and noncapital defendants alike. As long as the two tracks exist, significant sentencing reform is all but impossible. If as a matter of constitutional law, death were no longer different, our criminal justice system would be--and almost certainly for the better.
TABLE OF CONTENTS INTRODUCTION I. How DEATH MAKES A DIFFERENCE A. The Sentencer's Discretion 1. Guided Discretion 2. Individualization B. Proportionality Review II. THE TWO-TRACK SYSTEM AND THE CONSTITUTION A. The Traditional Means of Constitutional Interpretation. B. The Functional Case for Treating Death Differently C. Specific Substantive Contexts 1. The Sentencer's Discretion 2. Proportionality Review D. Administrative Concerns III. THE PITFALLS OF THE TWO-TRACK SYSTEM A. How the Two-Track System Harms Capital Defendants. B. How the Two-Track System Harms Noncapital Defendants C. The Two Tracks Mirror the Irrationality of Sentencing Politics IV. TOWARD A UNIFIED JURISPRUDENCE OF PUNISHMENT CONCLUSION
INTRODUCTION
Death is different, according to the Supreme Court. (1) And the Court is hardly guilty of understatement. Its capital sentencing jurisprudence departs from its noncapital sentencing case law in the most fundamental ways. In capital cases, the Court insists that statutes guide the sentencing authority's discretion so that a death sentence cannot be imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, exempting certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. In noncapital cases, in contrast, the Court has done virtually nothing to ensure that the sentence is appropriate. Mandatory punishments proliferate with no attention to an individual's particular culpability, sentences are frequently disproportionate given the actual conduct and culpability of the offender, and arbitrariness abounds.
Although the Court has relied on the "death is different" mantra time and again in its case law to justify its stark two-track system for sentencing, the Eighth Amendment does not support the Court's elaborate set of rules for death and its virtually nonexistent role in overseeing any other criminal sentence. The functional explanations used by the Court to support its capital rulings also fail to support the Court's bifurcated approach, for these arguments apply equally to noncapital cases.
It is not just the Court's unpersuasive legal reasoning that calls into question the two tracks of sentencing; the Court's two-track approach has also been a policy failure for capital and noncapital cases alike. The Court's additional substantive protections for capital cases satisfy neither the critics nor the supporters of the death penalty. Critics of the death penalty are unhappy with the Court's approach because it helps preserve capital punishment. People who are not unalterably opposed to the death penalty but who are concerned that it be administered fairly gain false comfort from the fact that the Court has created heightened protections for capital cases. (2) But, as scholars of the Court's death penalty jurisprudence have pointed out, the protections established by the Court fall short of addressing all the concerns raised by capital punishment. (3) There are extra rules, but they do not go to the core problems with the death penalty's administration. Meanwhile, supporters of the death penalty decry these same safeguards because they create the perverse situation that the worst criminal offenders receive more substantive protection than any other defendant and because the Court saddles death cases with greater prosecutorial burdens. Pro-death penalty advocates are therefore able to use the Court's jurisprudence as a rallying cry for tough-on-crime and pro-death penalty legislation. (4) And as bad as the Court's two-track jurisprudence may be for death cases, it is far worse for noncapital matters, which by comparison languish in a backwater devoid of any procedural protections.
Perhaps the most disconcerting part of the Court's bipolar approach to substantive sentencing law is that its very nature makes it resistant to change. By not having to consider criminal sentencing questions under the same constitutional rules, the Court can scrutinize death cases more closely without taking on the burden of policing all criminal cases. The Court has an interest in doing this because it allows the Court to feel better about its role in capital punishment's administration without paying much of a price. The Court likely feels some responsibility for the resulting death in an execution because of its significant role in overseeing all capital cases' compliance with the Constitution. (5) The Court typically receives a petition for a stay on the eve of an execution, so it knows that it is usually the last stand between the defendant and the end of his or her life. That is a heavy load to bear, but by allowing itself to give special scrutiny to capital cases, the Court can alleviate some of its worries about how a capital sentence has been administered. At the same time, by cabining capital cases to a separate category, the Court never has to confront the question of whether it is prepared to give greater oversight to all criminal cases in exchange for the benefits it wants to achieve in capital cases. In 2004, more than one million adults received noncapital sentences versus 115 people who received death sentences. (6) The Court has focused on the tiny percent of cases it views as the most sympathetic and created a special jurisprudence for them. With those cases off the table as a cause for concern, the Court can--and has--ignored the rest.
The entrenchment goes deeper still. By creating a two-track system, the Court has taken what should be natural allies for broader criminal justice improvements--capital and noncapital defendants and their representatives-and placed them at odds with one other. Capital punishment reformers now explicitly argue that the protections they are requesting should apply only to capital cases so that they can emphasize the low burden their requests would impose on the system. (7) These reformers therefore explicitly cast aside noncapital cases as areas in need of reform. In addition, death penalty abolitionists frequently tout life without parole as a viable sentencing option, even though noncapital sentencing reformers have highlighted that life without parole itself raises fundamental questions of justice. (8)
The Court's two-track approach to sentencing is troubling not only because it maintains the status quo at the Court, but also because reform through the political process is so difficult for noncapital cases. (9) It is almost impossible for the millions of people serving noncapital sentences to get the public's attention about injustices in noncapital sentencing law, even though there are many. (10) While the politics surrounding capital punishment is hardly a model of rationality, capital punishment has generally been subject to more political scrutiny and consideration than noncapital punishment. The Court's approach therefore exacerbates the imbalance that already exists in the political process.
This is not to suggest that Court oversight is not needed in capital cases, because it plainly is. The political process surrounding the death penalty is itself still deficient, and the Constitution demands judicial review of criminal sentencing. (11) The point here is that this same judicial oversight is needed in noncapital cases--perhaps more so.
This Article argues that it is time for the Court to abandon the two-track approach to criminal sentencing under the Eighth Amendment. It is wrong as a matter of doctrine, and it is unwise as a matter of policy. It has unreasonably discriminated among criminal defendants, and most sentencing laws are virtually impervious to improvement so long as the Court clings to the claim that it need not apply the same constitutional protections to capital and noncapital defendants.
The argument unfolds as follows: After outlining how the Court's two sentencing tracks differ in Part I, Part II argues that neither the Constitution, the Court's functional arguments, nor the demands of specific contexts justify the Court's bifurcated approach to the Eighth Amendment. Part III expands on this discussion by explaining how the two-track system harms both capital and noncapital defendants. Finally, Part IV argues that there are good reasons to believe that a switch to uniformity would improve both capital and noncapital sentencing.
I. HOW DEATH MAKES A DIFFERENCE
Most constitutional rights belong to capital and noncapital defendants alike. The core protections for criminal cases in the Fourth, Fifth, and Sixth Amendments, for example, apply equally to both sets of defendants. Conversely, when the Court rejects arguments for a proposed right, it typically treats capital and noncapital cases alike. (12)
But that is not always the Court's approach. The Court has recognized a series of constitutional rights that apply only to capital defendants. (13) The Court's cases granting capital defendants greater procedural and substantive protections comprise the death-is-different canon. While these cases cover a range of areas, (14) this Article focuses only on the Court's Eighth Amendment decisions that interpret the Constitution to place substantive limits on capital sentences. (15) The focus here is on these substantive decisions instead of all death-is-different case law because substantive sentencing review under the Constitution operates as the strongest check on the government. Because these decisions place limits on the content of sentencing law, not just the procedures that must be followed before a sentence is imposed, this line of case law is the most consequential for defendants and policymakers. The cases discussed in this Part are the substantive core of the Court's death-is-different case law, and they stand in sharpest contrast with the Court's noncapital decisions. (16) Section I.A focuses on the Court's cases regulating the sentencer's discretion. Section I.B discusses the Court's differing use of proportionality review in capital and noncapital cases.
A. The Sentencer's Discretion
Perhaps the most fundamental way in which the Court treats death differently than all other sentences is in its heightened concern for the exercise of sentencing discretion. In death cases, it has sought to "develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual." (17) That is, the Court has sought both to guide discretion and to ensure appropriate individualization. In nondeath cases, by contrast, the Court has made no effort either to control sentencing discretion or to require attention to individual circumstances.
1. Guided Discretion
When the Supreme Court struck down capital punishment as it then existed in 1972 in Furman v. Georgia, (18) its central concern was avoiding arbitrary and capricious death sentences. (19) To be sure, the opinions were splintered, but a majority of Justices shared that same basic sentiment. (20) And the Court later ended the post-Furman moratorium on the death penalty only in those states that had, in its view, eliminated the danger of unguided discretion. (21) The Court approved those statutes that were "carefully drafted [to] ensure[] that the sentencing authority is given adequate information and guidance." (22) It made clear that capital statutes must direct and limit discretion and provide a "'meaningful basis for distinguishing the ... cases in which [the death penalty] is imposed from the many cases in which it is not.'" (23) The plurality in Gregg emphasized that, in death cases, "discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." (24) The capital punishment statute must therefore be narrowly tailored so that defendants convicted under it deserve its punishment, and so that it controls against discriminatory application. (25)
To enforce this principle, the Court has required states imposing the death penalty to define death-eligible crimes in a way that "channel[s] the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.'" (26) Using this standard, the Court struck down a law that made a defendant eligible for death upon a finding that his conduct was "'outrageously or wantonly vile, horrible, and inhuman'" because "[a] person of ordinary sensibility could fairly characterize almost every murder" as meeting that standard. (27) Instead, jurisdictions must provide a finite list of specific aggravating factors to limit the jury's discretion. (28)
While capital statutes must now be drafted with some care to guide discretion, noncapital criminal laws are subject to no similar constitutional requirements. The Court has emphasized this distinction, noting explicitly that "legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases." (29) Legislatures have made ample use of that freedom. Almost half of all jurisdictions continue to employ indeterminate sentencing that allows judges to select a sentence from within a broad range. (30) In addition, federal and state criminal codes typically give prosecutors a wide choice of charges to bring for the same criminal conduct, which further adds to the likelihood of discriminatory application of sentencing in noncapital cases. (31) Finally, as Nancy King has observed, in the six states that use jury sentencing in noncapital cases, "courts and legislatures have been remarkably unconcerned with the arbitrary exercise of discretion." (32)
2. Individualization
Seemingly in tension with the Court's insistence that discretion be channeled in capital cases (33) is its rejection of statutes that mandate death as the punishment for the commission of specified crimes. (34) After all, these statutes were written to control the problem of arbitrary jury discretion. Nevertheless, the Court rejected them as inconsistent with the Eighth Amendment's requirement "that the individual be given his due." (35) According to the Court, "the character and record of the individual offender and the circumstances of the particular offense [are] a constitutionally indispensable part of the process of inflicting the penalty of death." (36) The Court has therefore held that states may not preclude the sentencer from considering as a mitigating factor "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (37) In describing what mitigating evidence has to be considered, the Court has used "the most expansive terms" (38); indeed, "virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances." (39) Despite the tension with discretion, looking at the individual circumstances of the offender and the offense is now "[a] central feature of death penalty sentencing" (40) and capital statutes must ensure that sentencing bodies can give effect to mitigating evidence. (41)
In noncapital cases, in contrast, the Court has found no constitutional problems with even the most extreme mandatory penalties. (42) For example, in Harmelin v. Michigan, a majority of the Court rejected the defendant's argument that mitigating factors should be considered before a sentence of life without parole is imposed. (43) Federal and state codes are brimming with laws that limit the introduction of mitigating evidence. (44) Mandatory sentencing provisions that take no account of an individual's circumstances or background are commonplace outside the context of the death penalty. (45)
B. Proportionality Review
While both capital and noncapital defendants are theoretically entitled to the same right of proportionality review, the level of protection the Court actually accords to each is starkly different. The Court has interpreted the Eighth Amendment to ban "not only those punishments that are 'barbaric' but also those that are 'excessive' in relation to the crime committed." (46) An unconstitutionally excessive punishment, according to the Court, is one that either "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." (47) In the Court's view, "it is a precept of justice that punishment for crime should be graduated and proportioned to offense." (48)
In capital cases, the Court's proportionality review is robust. It has categorically ruled out the option of imposing the death penalty as a punishment for some offenses and some offenders. As to offenses, in Coker v. Georgia, the Court held that it would be "grossly disproportionate and excessive punishment" to allow the death penalty for the rape of an adult; (49) last Term, in Kennedy v. Louisiana, the Court extended this prohibition to disallow the death penalty for the rape of a child. (50) Indeed, in Kennedy, the Court said in dictum that it would not allow the death penalty for crimes against individuals that do not involve death. (51) The Court has created limits even when crimes do involve death. For example, in Enmund v. Florida, the Court concluded that the Eighth Amendment prohibits capital punishment for someone convicted of felony murder "who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed," (52) unless, as the Court later clarified, the person was a "major" participant in the felony who evinced "reckless indifference to human life." (53) As to offenders, the Court has disallowed the death penalty for defendants under the age of eighteen at the time of their offense, (54) the mentally retarded, (55) and the insane. (56)
In stark contrast, the Court has been steadfast in its refusal to police disproportionate sentences outside the capital context. (57) It has created no categorical rules exempting some offenders or offenses from particular punishments. Quite the opposite, the Court believes that only a "'narrow proportionality principle' ... 'applies to noncapital sentences," (58) and it has created a test for establishing an unconstitutionally disproportionate sentence in noncapital cases that is more difficult to satisfy than the approach it uses in capital cases. In capital cases, the Court will look to see how other jurisdictions treat the crime at issue and how the same jurisdiction treats other crimes in relation to the crime at issue. (59) The Court also conducts its own independent assessment to see if the gravity of the offense and the culpability of the offender justify a sentence of death regardless of the consensus. (60) For noncapital cases, the Court will not conduct either the inter- or intra-jurisdictional comparisons without first finding as a threshold matter that the sentence is grossly disproportionate to the crime. (61) In making the threshold determination of whether a sentence is grossly disproportionate, the Court will uphold a sentence so long as the state has a "reasonable basis for believing" that it will serve either deterrent, retributive, rehabilitative, or incapacitative goals. (62)
Many critics have justly attacked this test for its weak enforcement of the Eighth Amendment and its subjectivity. As one commentator described it, it is a "standardless threshold test, which in effect allows federal courts to withhold proportionality review from non-capital sentences whenever it fits their personal or policy goals." (63) "Because it is lacking in firm guidelines," another critic notes that the test "could permit judicial, and therefore constitutional, approval of some bizarre and grotesque criminal sentences...." (64) Indeed, because the Court will not look to comparable sentences elsewhere before making this threshold determination, it is likely that the Court will fail to appreciate just how excessive a particular sentence is (65).
That has certainly been borne out by the Court's practice. (66) Consider some of the sentences that the Court has upheld. For example, in Ewing v. California, the Court condoned a sentence of twenty-five years to life under California's three-strikes law for a recidivist who stole three golf clubs worth approximately $1,200. (67) California and the United States in an amicus brief supporting the sentence could cite but a single example of another offender who received a similar sentence outside of California, out of a prison population that at the time reached almost two million individuals. (68) Only nonrecidivist, first-degree murderers were treated to comparable punishment in California. (69) Perhaps not surprisingly, none of the briefs in Ewing even made an attempt to justify the sentence under a retributive theory. (70) Indeed, though a majority voted to uphold the sentence as constitutional, five Justices in that case agreed that the sentence was disproportionate. (71)
Andrade, the companion case to Ewing that involved a habeas challenge to a sentence under the same California law, involved an even more disproportionate punishment. (72) Andrade's first strike was a petty-misdemeanor theft and strikes two and three were two separate incidents of video theft at different Kmart stores, one involving five videotapes worth roughly $85 and another two weeks later involving four videotapes worth a little less than $70. These crimes yielded Andrade a sentence of 50 years to life. (73) Because Andrade's challenge was on habeas review, he had to show that his sentence violated clearly established law. The Court found that it was clearly established law that "[a] gross disproportionality principle is applicable to sentences for terms of years" (74) but it concluded that the state court was not objectively unreasonable when it affirmed Andrade's sentence. (75) As the dissent put it, "[i]f Andrade's sentence is not grossly disproportionate, the principle has no meaning." (76)
Additional noncapital cases likewise demonstrate the Court's lack of proportionality oversight. In Rummel v. Estelle, the Court approved a mandatory life sentence for a defendant who had committed three separate low-level theft offenses that together totaled less than $230. (77) According to the majority in Rummel, "the length of the sentence actually imposed is purely a matter of legislative prerogative" in felony cases. (78) The Court took this notion of deference seriously in nonrecidivist cases as well. For instance, in Hutto v. Davis, it upheld a forty-year sentence and $20,000 fine for a defendant convicted of possessing with the intent to distribute nine ounces of marijuana. (79) Similarly, in Harmelin, the Court upheld a mandatory life sentence without parole for a first-time offender in Michigan charged with possessing 672 grams of cocaine. (80) Alabama was the only other state that authorized a mandatory life sentence for a first-time drug offense, and its law required a minimum of 10 kilograms of cocaine to trigger it. (81) The Court nevertheless had no trouble upholding the sentence (82) with three Justices finding no proportionality problem with the sentence and Justices Scalia and Rehnquist interpreting the Eighth Amendment to not require proportionality review in noncapital cases. (83)
Indeed, the Court has rejected noncapital sentences as disproportionate in only a handful of cases, all of which are decades old and all but one of which involve facts that go beyond the term of incarceration into "cruel and unusual" modes of punishment. The Court first rejected a noncapital sentence as cruel and unusual in 1910 in Weems, (84) which was also the first case in which the Court recognized that disproportionately excessive punishments violate the Eighth Amendment. (85) In Weems, the Court rejected a sentence of fifteen years for a public official in the Philippines who falsified an official document. (86) At the same time, the sentence in Weems went beyond incarceration. The defendant was sentenced under the Philippine law of cadena temporal, which required the defendant to "'always carry a chain at the ankle, hanging from the wrists'" and to "'be employed at hard and painful labor.'" (87) The defendant was also fined, and his sentence included various collateral consequences, including the loss of parental and voting rights and being subject to a lifetime of surveillance. (88) Indeed, the Court has since distinguished Weems on the basis of "the extraordinary nature of the 'accessories' included within the punishment of cadena temporal." (89)
It was forty years before the Court struck down another punishment under the Eighth Amendment, when a plurality of the Court in Trop v. Dulles rejected a sentence of expatriation for wartime desertion. (90) Shortly thereafter, in Robinson v. California, the Court held that any term of imprisonment for the "crime of addiction" was cruel and unusual. (91) Like Weems, both of those cases are distinguishable from a run-of-the-mill challenge to a term of incarceration. Trop involved a challenge to expatriation, not a term of imprisonment, and although the Court in Robinson rejected a term of imprisonment for addiction, its core concern was with the legislature's power to define addiction as a crime at all, not proportionality. (92)
There has been only a single case in the Court's history in which a term of incarceration, standing alone, was held to be disproportionate to an otherwise validly defined crime. In the 1983 case of Solem v. Helm, the Court found unconstitutional a mandatory life sentence without the possibility for parole for a defendant who wrote a "no-account" check for $100 that was his seventh nonviolent felony. (93) It was "the most severe punishment that the State could have imposed on any criminal for any crime," (94) and there was no evidence that anyone else in any jurisdiction had ever been given the same sentence for comparable crimes. (95)
Solem now stands as an outlier. Since Solem, the Court has adopted its threshold test in noncapital cases that allows jurisdictions to impose their sentences as long as they have a "reasonable basis for believing" that the sentences will serve either deterrent, retributive, rehabilitative, or incapacitative goals. (96) The subsequent cases of Harmelin, Ewing, and Andrade applying that threshold test make clear that "proportionality has become virtually meaningless as a constitutional principle." (97)
The Court has also failed to enforce the principle of proportionality as it relates to less culpable noncapital offenders. While the Court disallows the execution of individuals under the age of eighteen because it views those individuals as lacking the culpability of an adult, it has not insisted that an offender's age be taken into account for any other type of sentence. Indeed, the Court has not disapproved of sentences of life without parole for children as young as thirteen, (98) even if those sentences are mandatory and imposed on juveniles without any individualized assessment of culpability. (99)
The Court has similarly ignored the lesser culpability of the mentally retarded in noncapital cases. Before it completely disallowed the execution of the mentally retarded in 2002, (100) the Court insisted that mental retardation be considered as a mitigating factor in capital cases. (101) In noncapital cases, in contrast, the Court has not yet recognized that mental retardation must be considered at all--either as a bar to punishment or as a mitigating factor. Instead, the Court has left it up to each jurisdiction how it wishes to treat mental retardation at sentencing. (102) As a result, the mentally retarded can be sentenced to life without parole or other harsh mandatory sentences without an opportunity to present their mental condition as a mitigating factor that reduces their sentence. (103)
Finally, although the Court insists that a defendant's individual participation in a felony must be considered in determining whether a death sentence is appropriate for felony murder, (104) it has not imposed the same requirement in any felony murder case involving a sentence other than death, even life without parole. Justice Kennedy's concurrence in Harmelin summed up what appears to be the prevailing view on the Court, that "the crime of felony murder without specific intent to kill [is] a crime for which 'no sentence of imprisonment would be disproportionate.'" (105)
Thus, whether it comes to offenses or offenders, the Court's proportionality review differs markedly in capital and noncapital cases. The Court has struck down a host of state laws attempting to impose capital punishment because it found them to be disproportionate. But out of the millions upon millions of noncapital sentences imposed, the Court has found only one term of confinement to be disproportionate and that lone occurrence was more than twenty-five years ago.
II. THE TWO-TRACK SYSTEM AND THE CONSTITUTION
The Court's stated justification for the two tracks of substantive sentencing law under the Eighth Amendment is that "death is a punishment different from all other sanctions in kind rather than degree." (106) One can hardly argue with the Court's claim that death is a different kind of punishment. But as a matter of constitutional law, that does not get to the heart of the legal question raised by the two tracks. The key question is whether the fact that death is a different kind of punishment justifies creating a different set of substantive constitutional rights that belong only to capital defendants. In other words, given the divergence between substantive protections afforded capital and noncapital defendants over the past three decades, the Court's claim of difference must be analyzed to determine whether it is not merely factually true, but legally significant.
This Part takes up that task, exploring whether there is a constitutional basis for the distinctions discussed in Part I. After explaining in Section II.A the lack of support for the two-track system in the text of the Eighth Amendment, Section II.B considers the Court's functional arguments for concluding that there is one set of constitutional rules for death and another for everything else. In particular, Section II.B explains that the Court's concerns with the finality and severity of death fall short of supporting its disregard of defendants' substantive sentencing rights in noncapital cases. Section II.C then considers separately each of the substantive areas discussed in Part I to determine if there are additional arguments for treating capital cases in these particular contexts differently and finds any such arguments similarly lacking. Finally, Section II.D considers the role administrative concerns play and should play in the decision to limit robust protections to capital defendants.
A. The Traditional Means of Constitutional Interpretation
The Court's decisions prohibiting arbitrariness, requiring individualization, and ensuring proportionality are grounded in the Eighth Amendment, which prohibits the infliction of "cruel and unusual punishments." (107) There is no hint in the text itself that these terms should mean one thing in capital cases and another in noncapital cases. (108) The Court, for its part, seems to concede as much, stating that "[t]he Eighth Amendment is not limited in application to capital punishment, but applies to all penalties." (109) It has interpreted "cruel and unusual punishment" to mean those punishments that are "barbaric" as well as those that are "'excessive' in relation to the crime committed." (110) Whether a crime is barbaric or excessive is assessed in light of historical treatment (111) as well as contemporary standards of decency. (112) A majority of the Court has recognized that noncapital punishments, such as terms of confinement, can...
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