October 26, 2004

Private: In Clarence Thomas' America, There's No Such Thing As An Excessive Prison Sentence

column by Shane Kelbley, Editor-at-Large
Concurring separately in Ewing v. California (2003), Justice Clarence Thomas goes a step beyond the high court's decision to uphold a mandatory 25-year to life sentence for a man convicted of shoplifting three golf clubs under California's controversial "Three Strikes and You're Out" legislation.
The Ewing case involved a recidivist, who, after a number of misdemeanors and two previous felony convictions, was finally caught attempting to exit a golf shop with three expensive golf clubs concealed in his pants and sentenced to 25-years to life in jail. By a 5-4 vote, the Supreme Court upheld the sentence as constitutional, and in a brief concurrence, Thomas expressed his agreement with Justice Scalia's thesis that the 8th Amendment's prohibition on "cruel and unusual punishment" contains no guarantee that a punishment will be proportional to the crime committed.

However, even Justice Scalia, while promoting his own interpretation of what constitutes cruel and unusual punishment has admitted that "Out of respect for the principle of stare decisis, I might nonetheless accept . . . that the Eighth Amendment contains a narrow proportionality principle--if I felt I could intelligently apply it." Justice Thomas, in contrast, wrote that even if the test were "perfectly clear, " he "would not feel compelled by stare decisis to apply it." He went on to reiterate that "In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle," and points to Justice Scalia's Harmelin opinion for an example of the jurisprudential philosophy he endorses on the subject.
In Harmelin v. Michigan, Scalia promulgated the idea that proportionality is only a restraint as to the mode of punishment, not to the severity of the accepted mode. This theory would restrict Supreme Court review of "cruel and unusual punishment" to death sentence cases, since only a death sentence, as a disproportionate mode of punishment, would violate the 8th amendment. Thus, according to Justices Scalia and Thomas, although Georgia may be restricted from imposing the death penalty for the crime of rape as an inappropriate mode of punishment, there is no Constitutional restriction on the length of the prison term that can be applied to a convicted rapist.
While this theory may not be questionable in the context of serious crimes such as rape, it is less clearly desirable in light of the facts of Lockyer v. Adrade, where a third time felon was sentenced to two consecutive 25-year sentences for the theft of nine videotapes. Although a divided court upheld the 50-year sentence as constitutional, Justice O'Connor, writing for the majority, also stated very clearly that a grossly disproportionate sentence could violate the Constitution, as was the case in the court's 1983 case, Solem v. Helm, where a life sentence imposed for cashing a fake $100 check was overturned.
In the final analysis, what is most usual about Justice Thomas' judicial philosophy regarding 8th amendment jurisprudence is not his tendancy to uphold lengthy criminal sentences -- a jurisprudential philosophy that has gained traction in the court over the last few years -- but rather his willingness to dismiss years of Supreme Court precedent and re-interpret the Constitution.

Equality and Liberty