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Session Summary: The Modern Eighth Amendment

Submitted by Corinna Lain

Wednesday afternoon’s discussion group on “The Modern Eighth Amendment” showcased the wide array of issues posed by the Eighth Amendment in the modern era.  Will Berry (Ole Miss) and Meghan Ryan (SMU) organized the discussion group into three broad areas, with the first group of scholars discussing the history of the Eighth Amendment, the second group discussing Eighth Amendment doctrine, and the third group discussing the future of the Eighth Amendment.  It’s fair to say that the discussion group (and those who showed up to join in the fun) had a great time nerding out on the Eighth Amendment, and wondered why anyone would possibly want to talk or write about anything else.

The first third of the discussion—the part focusing on the history of the Eighth Amendment—featured comments by John Bessler (Baltimore), John Stinneford (U Florida), and Michael Mannheimer (Northern Kentucky).  Bessler provided a look at ground zero of the Eighth Amendment, tracing its roots to the English Bill of Rights of 1689 and explaining how it came to be adopted, and adapted, in early state constitutions and the Eighth Amendment.  Stinneford followed by explaining how the original meaning of the Eighth Amendment’s “cruel and unusual punishments” clause was to prevent punishments that were contrary to longstanding custom (hence “unusual”) and unjustly harsh (hence “cruel”), amounting to a prohibition against cruel innovations in punishment practices, and then mused about what would happen if we applied that standard to punishments today.  Mannheimer rounded out the first part of the discussion by explaining that the ratifiers of the Eighth Amendment viewed their newly adopted right against the backdrop of federalism, and that the question of whether a punishment was “cruel and unusual” was one that more accurately should be described as whether a punishment was “cruel and unusual” in the state in which the punishment is being applied, recognizing that what is excessive in one jurisdiction may not have been in another.

The second part of the discussion focused on Eighth Amendment doctrine, and featured comments by Corinna Lain (Richmond), Will Berry (Ole Miss), and Richard Bierschbach (Dean, Wayne State).  Lain’s comments focused on the power, problems, and potential of the “evolving standards of decency” doctrine, noting how powerful the doctrine has become over time, how it is problematic in many ways, and how it has the potential for ending the death penalty itself, but for reasons that have surprisingly little to do with the doctrine’s normative origins.  Berry followed by examining more closely one of the chief complaints about the “evolving standards” doctrine—it recognizes constitutional protection only when a majority of states have already recognized the need for protection on their own—and explored why the Supreme Court is nevertheless so hesitant to recognize protection in this area, and what sorts of doctrinal developments might change that.  Bierschbach turned the discussion from substantive Eighth Amendment constraints to the sorts of procedural protections that the Eighth Amendment requires, drawing parallels to the administrative law context and the sort of robust reason-giving and dialogue that we see among the actors in that context.

The last third of the discussion—the part examining the future of the Eighth Amendment—featured comments from Debby Denno (Fordham), Cara Drinan (Catholic), and Meghan Ryan (SMU).  Denno discussed how lethal injection litigation is grinding the death penalty to a halt, and how states are responding to that by returning to old methods of execution, sometimes with a new twist, and the many ways in which that response is problematic.  Drinan looked at the Supreme Court’s LWOP decisions in the juvenile context, and gave us the good news (20 states have now banned LWOP for juveniles across the board) and the bad news (recalcitrant states are still recalcitrant, and working to limit the Supreme Court’s rulings in numerous ways).  Ryan rounded out the discussion by examining the role of science in the Eighth Amendment, particularly in the areas of competency and culpability, and the where the Supreme Court might be going next.  As Ryan put the point, science can’t answer the legal questions, but it is a tool that the Court uses in this area in numerous ways.

If you missed this panel, you really did miss out.  The good news is that a book proposal is in the works, so all this will be available (hopefully) in a printed format that you can read, highlight, tab, and place on your favorite bookshelf.

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