*This post is part of ACSblog’s 2015 Constitution Day Symposium.
“Neither slavery nor involuntary servitude shall exist, except as punishment for a crime ….” This criminal punishment exception to the 13th Amendment is all the more brazen when one considers the inhumanity of lengthy prison sentences today – often handed out in assembly-line fashion, and dispensed more often to Blacks. Although we call our system a criminal justice system, its focus is punishment and it punishes very severely. Punishment’s correlation to enslavement remains in the Constitution and, as such, must be closely scrutinized.
As a staff attorney for the ACLU’s National Prison Project in the 1980s, I often cited in my conditions of confinement briefs Chief Justice Warren’s notable 1957 quote in Trop v. Dulles. His statement heralded the importance of considering the “evolving standards of decency that mark the progress of a maturing society.” This principle recognizes a people’s moral growth due to advancements in attitude and approaches.
During the height of the war on drugs with mandatory minimum sentences firmly in vogue, unnecessarily long sentences were robotically meted out with seemingly callous abandon. Shocking punishments over the past 30 years of 10, 20, 30 years and life imprisonment for drug offenses hardly raised an eyebrow. These commonplace sentences snatched mothers from children, men from loved ones, and furthered the destabilization of families and communities. Such punishments should offend our society’s standard of decency.
But they have not.
In 1991 the Supreme Court ruled in Harmelin v. Michigan that mandatory life imprisonment for a first-time drug offense did not violate the 8th Amendment’s ban against cruel and unusual punishment because, although the punishment was cruel, it was not unusual. It sounds ludicrous and left many of us flabbergasted.
The twisted rationale reminded me of McClesky v. Kemp, decided a few years earlier in 1987. There the Court declined to provide relief in a death penalty case despite overwhelming evidence of racial bias because the justices feared that the floodgates would be opened to widespread racial challenges in other parts of criminal sentencing as well.
Lengthy sentences are cruel, but they are usual. Systemic racism exists, but that is the norm. Fortunately, since Harmelin, the Supreme Court has seen fit to use the 8th Amendment to ban the beating by prison guards of a handcuffed prisoner (Hudson v. McMillian, 1992); to prohibit the execution of a mentally retarded person (Atkins v. Virginia, 2002); to bar the execution of a prisoner for crimes committed while a minor (Roper v. Simmons, 2005); and to abolish life without parole for minors who commit non-homicidal crimes (Graham v. Florida, 2010).