At Volokh Conspiracy, John Stinneford (Florida) has this guest post on the Supreme Court's recent decision in Bucklew v. Precythe: What Bucklew Doesn’t Say. From the introduction:
… The majority opinion is explicitly originalist in its approach to the Cruel and Unusual Punishments Clause, a rare (if not unprecedented) phenomenon in the modern history of the Court. But in contrast to some prior originalist concurrences or dissents by Justices Scalia and Thomas, the Bucklew Court does not rush to make any comprehensive claims about the original meaning of the Clause. Rather, it skirts around the edges of the Clause's original meaning, deciding only enough about that meaning to demonstrate (to its own satisfaction, anyway) that Missouri's lethal injection protocol is constitutional. In this regard, Bucklew is an admirably modest opinion.
And from further on:
In the context of the Eighth Amendment, "unusual" means "contrary to long usage," not "rare" or "uncommon." It derives conceptually from the common law. Although today people often describe the common law as judge-made law, it was traditionally considered a form of customary law – the law of "long use and custom." Its authority did not derive from any claimed judicial lawmaking power. Rather, it derived from the idea that customary practices that are used over a very long period of time are presumptively just, reasonable, and enjoy the consent of the people – for if they lacked these qualities, they would fall out of usage. Because longstanding customs are presumptively reasonable, they can appropriately be enforced as law. The job of the common law judge is to identify longstanding customs and apply them in new cases.
Over time, the normative power of "long usage" gave rise to the idea of rights enforceable against the state. The idea was that even the sovereign lacked authority to violate fundamental rights established through long usage. This was the key idea underlying the American Revolution as well as the Bill of Rights. In this light, it becomes clear why the Eighth Amendment prohibits "cruel and unusual" – and not just "cruel" – punishments. Under the common law ideology that underlies the Eighth Amendment, the most reliable way to tell whether a punishment is unjustly harsh is to compare it to punishments that enjoy long usage. If it is significantly harsher than the tradition will permit, it is cruel and unusual.
One corollary to the notion of "long usage" is that if a once-traditional punishment ceases to be used for a long period of time, it is no longer part of the tradition. As Edward Coke wrote in the 17th century, "Custom loses its being if usage fails." Thus, contrary to Justice Scalia's claim, the Cruel and Unusual Punishments Clause does not tie us to the specific moral standards of 1790. If a punishment falls out of usage for multiple generations, it loses its presumption of reasonableness. If Congress sought to reinstitute the death penalty for a crime like counterfeiting, or to reimpose methods of punishment like branding or bodily mutilation, such punishments could be challenged as cruel and unusual despite the fact that they were acceptable in 1790 – for they have been disused for so long that they are no longer part of the tradition.
And in conclusion:
… [H]ad the Bucklew Court focused on the primary meaning of "unusual," it would have been able to draw on a relatively objective and determinate standard for measuring the cruelty of Missouri's lethal injection protocol: longstanding prior practice. Such a standard is notably missing from the Bucklew opinion. The Court notes that determining cruelty is a comparative process: for example, hanging was comparatively less cruel than long-disused punishments that "superadded" terror, pain, or humiliation to the process. Thus it was constitutionally acceptable even though it involved a significant risk of pain. Similarly, the Court held, the constitutionality of Missouri's lethal injection protocol must be determined by comparing it to some other punishment method. But rather than comparing the protocol to traditional methods of execution, the Bucklew Court relies on the "pick your poison" requirement, holding that the condemned offender himself should identify an acceptable (and feasible) method of execution to use as a point of comparison.
This requirement is obviously untethered from any constitutional standard as to what constitutes a cruel and unusual punishment. What if the only "feasible" alternatives are themselves unjustly harsh in comparison to traditional methods of punishment? In such a situation, the "pick your poison" requirement would force offenders to choose between two unconstitutional alternatives as the price of challenging the constitutionality of a method of execution. This result is precisely the opposite of what the Cruel and Unusual Punishments Clause requires. Let's hope that in a future case, the Court goes further and recognizes the full original meaning of "unusual." The point of comparison should be traditional punishments that have not fallen out of the tradition, not other "feasible" punishments whose constitutionality has not been established. The Constitution is strongest when judicial rulings are based on standards derived from the text and not their own invented requirements.
On the other hand, the Bucklew Court's recognition that punishments can become unusual if they suffer long disuse is a hopeful sign for the future. One of the primary objections to an originalist approach to the Cruel and Unusual Punishments Clause is that it would force courts to uphold punishments like branding and bodily mutilation because they were used in 1790. This objection is so powerful that it led Justice Scalia himself, early in his career on the Supreme Court, to call himself a "fainthearted originalist" and to express doubt as to whether – should push come to shove – he could actually enforce what he considered the original meaning of the Clause. Once the Court recognizes that the Clause does contain a principle of legal development – albeit one that operates very differently from the "evolving standards of decency test" – this objection evaporates. Execution for minor crimes, and the use of punishments like mutilation and branding, are no longer part of our tradition, and thus would not have to be automatically approved should the government try to revive them. Originalists need no longer be faint-hearted.
Professor Stinneford is the premier scholar of the original meaning of the Eighth Amendment; his articles include: The Original Meaning of 'Cruel' (Georgetown Law Journal 2017); and The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation (Northwestern Law Review 2008) (cited by Justice Gorsuch's majority opinion in Bucklew).
Posted at 6:05 AM