So-Called ‘Originalism’ No Help in Determining Cruel and Unusual Punishment

April 24, 2012

by Jeremy Leaming

From time to time, perhaps once a decade, syndicated columnist George Will can say or write something that does more than trumpet right-wing talking points. A recent piece on the Supreme Court’s consideration of whether sentencing juveniles to prison with no chance of parole violates the Constitution is an example.

Writing about cases involving juveniles who were sentenced to life in prison for crimes they committed when they were 14, Will says the judges involved had “no discretion to impose any other” sentences, and that such mandatory sentencing bars courts from taking into consideration our “society’s sense of cruelty.” This kind of thinking, however, as Will notes can undercut so-called originalism, a method of interpreting the Constitution favored by conservative judges. Toward the end of his column, Will writes that “even the ‘originalist’ Scalia, although disposed to construe the Constitution’s terms as they were understood when ratified, would today proscribe some late-18th-century punishments, such as public lashing and branding.”

Instead of obsessively trying to figure out what the Constitution’s framers thought when they crafted the document, competent judges today consider societal developments, which are informed by science. In fact, Will writes that the high court “has accommodated what science teaches.” He cites high court opinions from 2005 and 2010 that took into account studies on the differences between youngsters and adults in limiting the use of the death penalty in cases involving juveniles.

In 2005’s Roper v. Simmons, the justices relied in part on the differences between children and adults in concluding that the death penalty would not be imposed for crimes committed by those under 18, and later in Graham v. Florida that life sentences without parole would not be dealt to juveniles convicted of non-homicide crimes.

Will argues that the social science should be relied on by the high court in finding that teenagers committed of violent crimes, including homicide, should not be imprisoned forever. “Denying juveniles even a chance for parole defeats the penal objective of rehabilitation,” Will writes.

In a March 13 guest post for ACSblog law professor Kristin Henning also notes that scientific research “on adolescent development bolsters the commonsense understanding that teenagers lack self-control, are vulnerable to environmental pressures, and have fewer life experiences on which to draw in evaluating the consequences of their actions.”

Henning wrote that the high court should conclude based on its precedent, which relied in part on science, that sentencing juveniles to prison with no chance of parole is indeed cruel and unusual punishment in violation of the Constitution’s Eight Amendment. Not only are such sentences cruel, she argues, but also unusual, noting that only 79 people in the country are serving life-without-parole sentences.

Stubborn supporters of originalism, however, might have difficulty concluding that life-without-parole sentences violate the Eight Amendment. Many will no doubt cling to the simplicity of originalism, no matter how wobbly the method.

In their 2009 book, Keeping Faith with the Constitution, Goodwin Liu, Pamela S. Karlan and Christopher Schroeder argue that the Constitution’s framers set out fundamental values of liberty, equality and democracy that would be applicable in a changing world. The authors argue that the Constitution’s creators left the words and broad principles in the document open to future interpretation and application.

Indeed the authors note that the Constitution employs “general language,” such as “the Fourth Amendment protection against ‘unreasonable’ searches and seizures,” and “the Eighth Amendment prohibition on ‘cruel and unusual punishments.’”

“The open-textured quality,” the authors continue, “of these phrases is significant because the Framers could have specified, for example, the particular punishments they intended to forbid under the Eighth Amendment. But they chose not to do so, leaving open the punishments that might offend human dignity in the future.”