By Bill Graves

The Constitution’s Eighth Amendment provides “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The “cruel and unusual punishment” prohibition was taken verbatim from the English Common Law and the English Bill of Rights of 1689 upon the passage of which “crucifixion, boiling in oil were no longer customary.” Nor were those punishments which were barbarous, inhuman and un-Christian. Nevertheless, Prof. Raoul Berger says “none of the cruel” methods “employed in the Bloody Assize” ceased to be used after 1689. Thus, “whipping, pillorying and excessive imprisonment” were not within the clause. Prof. Berger said: “The crowded catalog of (English) statutes decreeing death for trivial offenses explodes the so-called common law ‘doctrine’ that punishment must fit the crime.” Neither was disemboweling until it was “eliminated by statute” in 1814. Based on the Common Law, the Supreme Court held in Ex parte Kemmler, 136 U.S. 136, 446 (1890), that burning at the stake, crucifixion, breaking on the wheel, etc., were forbidden as “cruel and unusual,” but the death penalty was not. Punishments involving torture or a lingering death, the Court said, are unconstitutional. Thus, the Court held in Kemmler that “cruel and unusual” punishments were those viewed as cruel and unusual in the English Common Law.

Under the Common Law, “Benefit of clergy” was a defense to capital punishment. That is why Congress, in enacting a death penalty statute, eliminated that defense. This is important in understanding the meaning of “cruel and unusual” punishment. James Madison, the father of the Constitution as well as architect of the Bill of Rights, said that particular parts of the Common Law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government. Citing Chancellor James Kent’s Commentaries, the Supreme Court stated in Kepner v. United States, 195 U.S. 100, 125 (1904) that “(i)n ascertaining the meaning of the phrase taken from the Bill of Rights it must be construed with reference to the common law from which it was taken.” This was reiterated by the Court in Ex parte Grossman, 267 U.S. 87,109 in 1925. In U.S. v. Wong Kim Ark, 169 U.S. 649, 654 (1898), it was held that absent the Common Law, the Constitution could not be rightly understood. Chief Justice Marshall resorted to the Common Law to determine the meaning of the Constitutional terms habeas corpus and treason. Chancellor Kent prophetically said without the Common Law, “the courts would be left free to roam at large in the trackless field of their own imaginations.”

2. The Court Departs From the Common Law

After Kemmler the Supreme Court ultimately began its departure from the original understanding as to “cruel and unusual” punishment in Weems v. United States, 217 U.S. 349, 366-367 (1910), where upon conviction of fraud a defendant was sentenced to 15 years in prison including being chained from wrist to ankle and compelled to work at “hard and painful labor.” Prof. Berger has called Weems “the bible of death penalty abolitionists.” It may also accurately be said to be the bible of those who favor departure from the Framers’ original understanding of “cruel and unusual” punishment. Nevertheless, the seeds for departure from the common law were sown in Weems where the Court held that “it is a precept of justice that punishment for crime should be graduated and proportioned to the offense” Id, 366-367. This is clearly contradicted by the fact that under the common law, “thefts above the value of a few shillings were capital crimes.” In dissent in Weems, at 193, Justice Edward White, joined by Justice Oliver Wendell Holmes, Jr. stated:

That in England it was nowhere deemed that any theory of proportional punishment was suggested by the bill of rights or that a protest was thereby intended against the severity of punishments, speaking generally, is demonstrated by the practice which prevailed in England as to punishing crime from the time of the bill of rights to the time of the American Revolution.

Prof. Berger wrote that a ban on disproportionate penalties was “not a part of the common law.” Consequently,” Berger said, “Weems was not giving a ‘wider application’ to an accepted principle but replacing the principle with its own opposite.” Justice White, joined by Justice Holmes, said “Legislatures in punishment of crime may do so without suggestion of judicial power to control the legislative discretion.”

3. The Supreme Court and “Evolving Standards”

Subsequently, the Court made no pretense of adhering to the original understanding of “cruel and unusual” punishment, but held in Trop v. Dulles, 356 U.S. 86, 101 (1958), that the Constitution’s Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” “Evolving standards” were subsequently used by the Court to invalidate death penalty laws in Furman v. Georgia, 408 U.S. 238 (1972) even though capital punishment is both impliedly and expressly allowed in the Due Process Clauses of the Fifth and Fourteenth Amendments.

Now armed with not just Weems’ proportionality doctrine, but also “evolving standards,” the Supreme Court held in 2010 in Graham v. Florida, 560 U.S. 48 that “in determining whether a punishment is cruel and unusual, courts must look beyond historical exceptions to ‘the evolving standards of decency that mark the progress of a maturing society.” Citing Trop v. Dulles, Graham said “evolving standards” must be utilized “because ‘(t)he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment’ The standard itself remains the same, but its applicability must change as the basic mores of society change.” In Graham a 15-year old had been sentenced to what resulted in a life without parole sentence for a non-homicidal crime. Citing Weems, the Graham Court held that “the Court’s precedents consider the punishments challenged not as inherently barbaric but as disproportionate to the crime.” The U.S. Supreme Court expanded its “disproportionate” doctrine in Miller v. Alabama, 567 U.S. 460 (2012), Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718 (2016) and Kennedy v. Louisiana, 554 U.S. 407 (2008).

The above cases have resulted in sentences being reduced in many State cases at the expense of States’ sovereignty – including Oklahoma. In Luna v. State, 2016 OK CR 27, 387 P.3d 956, the 17-year old Defendant fatally shot in the back a young jogger from Australia, was convicted of murder in the first degree and sentenced to life imprisonment without the possibility of parole. Following the Graham, etc. precedents, the Oklahoma Court of Criminal Appeals reduced the penalty to life with the possibility of parole.

Conclusion

The concept of evolving standards raises questions which the People, the “ultimate authority,” (as James Madison called them) deserve answers. Madison said the Constitution’s “legitimate meaning….must be derived from the text itself” and if the Constitution is not interpreted in the same sense in which it was written and ratified, “there can be no security for a faithful exercise of its powers.” In South Carolina v. U.S., 199 U.S. 437, 448 (1905), the Supreme Court said the Constitution’s “meaning does not alter. That which it meant when adopted, it means now.” Judicial authority to alter the Constitution’s meaning per “evolving standards of decency that mark the progress of a maturing society” or “the basic mores of society” are legislative matters outside the scope of legitimate judicial power. What is meant by “decency”? How are “evolving standards” determined? It clearly appears to be from the personal beliefs of the Justices and what they personally believe or want the law to be. Justice Holmes, held that “(t)he criterion of constitutionality is not whether we believe the law to be for the public good.” Nevertheless, with “evolving standards” the criterion of constitutionality clearly appears to mean what the Court wants it to mean even if clearly adverse to the Constitution’s text and the original meaning of the Framers. This is a blank check for the Court to make the Constitution mean whatever the Court wants it to mean. Art. I of the Constitution states that all legislative powers reside in the Legislative branch. Thus, Justice Scalia said, the courts were never meant to have legislative, much less super-legislative powers. Madison warned that combining the legislative, executive and judicial powers in one branch of government is “the very definition of tyranny.”

Bill Graves was formerly a Oklahoma State Legislator and a District Judge.