Excessive Punishment Tests

Excessive Punishment Tests

The evolving-standards rule settles how the Clause is measured, and the next question is what the Clause forbids once it is measured that way. It forbids two kinds of punishment. The first is the barbaric sanction, a method of punishing that offends decency by its very nature. The second is the excessive sanction, and in Kennedy v. Louisiana the Court repeated that the Amendment proscribes “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.”¹ The second category carries most of the weight in modern cases, because a sanction can be forbidden without being cruel in the abstract. Death shows how this works. The Court has settled that the death penalty is not inherently barbaric and is not always disproportionate, yet it has also held death grossly disproportionate and excessive for the crime of raping an adult woman.²

Excessiveness rests on the proportionality precept, the idea that punishment for a crime should be graduated and proportioned to the offense, a principle the Court traces to Weems v. United States.³ In Weems the Court read the Clause as directed against all punishments that by their excessive length or severity are greatly disproportioned to the offense charged, and not only against punishments that inflict torture.⁴ The mechanism behind that reading is easy to see once the alternative is spelled out. A Clause that reached only barbaric methods could be avoided by choosing a familiar method, such as a prison term, and lengthening it without limit, because no method would then offend anyone. Measuring the sanction against the offense closes that route, since even an accepted penalty becomes forbidden when it is out of scale with the wrong it answers.

The formulation itself adds that a punishment might fail the test on either ground, which makes the two descriptions alternatives rather than cumulative requirements.⁶ Opinions label the two grounds differently, so the vocabulary needs to be recognized on sight. When Gregg considered death as a form of punishment in the abstract, it described the same two aspects in other words: the punishment must not involve the unnecessary and wanton infliction of pain, and it must not be grossly out of proportion to the severity of the crime.⁷ The first aspect is essentially the no-purpose test restated, and the second is the proportionality test under its more familiar name.

The tests are separate because a sanction can go wrong in two different ways. It can inflict pain that advances no legitimate aim, in which case the suffering lacks any justification however serious the crime was. Or it can serve an aim and still be out of scale with the harm and blameworthiness it answers, in which case the purpose is real but the price is wrong. Because these failures are distinct, satisfying one test says nothing about the other.

Students lose this issue when they reason that passing one test saves a punishment that fails the other. A sanction that serves deterrence has cleared only the first ground, and the proportionality question remains open until it is asked separately.

The second test asks for gross disproportion, and that word calibrates the judge's role. The Clause's own wording, which speaks of “excessive” fines and “cruel and unusual” punishments, states open-ended standards that call for judgment rather than a numerical line.⁸ Open-ended judgment by unelected judges carries an obvious risk, which is that a court will substitute its own idea of a wise sentence for the legislature's, and the Court has said that the Amendment must be applied with an awareness of the limited role courts play, since judges may not act as they might if they were legislators.⁹ Requiring gross disproportion keeps judicial intervention for sentences that are clearly out of scale and leaves the legislature a wide range of penalties within which reasonable lawmakers differ. The same restraint explains why neither test is supposed to turn on the Justices' private views, since judgment is to be informed by objective factors such as legislative attitudes and jury sentencing decisions to the maximum possible extent.¹⁰ A sentence that a judge finds harsh, or would have set differently, does not violate the Clause for that reason alone.

The two sections that follow take each test in turn, beginning with the no-purpose ground and then turning to gross disproportionality. Coker applies both tests to the death penalty for rape of an adult woman, and the later sections on capital punishment return to that decision after the method for deciding categorical bars has been laid out.

No Penal Purpose

The first excessiveness test asks whether a punishment accomplishes anything at all. Coker v. Georgia, restating the formulation from Gregg v. Georgia, treats a punishment as cruel and unusual if it "makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering."¹² The acceptable goals are the recognized reasons a society punishes, such as retribution (a deserved response to a wrong) and deterrence (discouraging future offenses), and a later section on penological justifications returns to the full list. The logic of the test is already visible, though. A penalty earns its place by what it achieves, so a sanction that advances none of those ends produces only suffering, and the state has no justification for inflicting suffering for its own sake.

Robinson v. California shows the test at work when the thing being punished is not a culpable act at all. California made the status of narcotic addiction a criminal offense, so a person could be convicted and jailed whether or not he had used or possessed any narcotic in the State or behaved badly there.¹³ The Court noted that addiction is an illness that may be contracted innocently or involuntarily, and it held that imprisoning a person for that condition inflicts cruel and unusual punishment in violation of the Fourteenth Amendment.¹⁴ The sentence length makes the case instructive. Ninety days in jail is not cruel or unusual in the abstract, yet the question cannot be considered in the abstract, and even a single day in prison would be cruel and unusual if the supposed crime were having a common cold.¹⁵ Atkins v. Virginia later described Robinson in just these terms, explaining that the ninety-day term could not be imposed for the status of addiction because such a sanction would be excessive.¹⁶

Read through the first test, the result in Robinson follows from what a status lacks. Retribution answers a blameworthy act, and deterrence works on people who can choose to avoid the punished conduct. A condition contracted involuntarily offers neither a wrong to repay nor a choice to discourage, so jail for the condition contributes nothing measurable to either goal. For that reason no length of sentence can fit a status, which is why the Court did not ask whether the term was too long. Justice Douglas, concurring, pressed the same point from the other side, observing that the statute aimed to penalize an illness rather than treat it and that a civil commitment would protect society just as well.¹⁷

The same ninety days can be valid when it answers conduct. The statute in Robinson did not punish the use, purchase, sale, or possession of narcotics, and the Court's holding was confined to the status offense.¹⁸ Justice Harlan, concurring, said in the same vein that addiction can be reached by the criminal law insofar as it is identified with use or possession in violation of local statutes.¹⁹

On an exam stem that stresses how short the jail term was, the argument that a few days cannot be cruel fails when the offense is a condition rather than conduct, because cruelty is measured against what is being punished. Brevity does not save a sentence that serves no penal goal, and length does not condemn one that does.

Gross Disproportionality

The no-purpose test asks whether a punishment accomplishes anything at all. The second test asks whether the amount of punishment fits the wrong it answers. Under the gross disproportionality test, a punishment is forbidden if it “is grossly out of proportion to the severity of the crime,” the words Gregg v. Georgia used and Coker v. Georgia repeated.²¹ The yardstick in that formulation is the crime. A penalty is heavy or light only relative to the offense it responds to, so the test puts the sanction on one side of a comparison and the seriousness of the offense on the other. The rule takes this shape because punishment expresses a judgment about what an offender deserves, and a penalty that overshoots the wrong is no longer justified by the wrong. The word “gross” then sets a demanding threshold, and this section returns to that threshold after tracing the precept to its source.

The precept comes from Weems v. United States, decided in 1910. There the Court held that twelve years in irons at hard and painful labor for the crime of falsifying records was excessive, explaining “that it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.”²² A graduated punishment is arranged on a scale, with heavier penalties reserved for graver wrongs and lighter ones for lesser wrongs, and a punishment is proportioned when its place on that scale matches the place of the offense. Weems shows what a gross mismatch looks like: a long term, made harsher by irons and hard labor, imposed for a record-keeping offense. The Court has since applied the same precept in later Eighth Amendment cases, which is why the second excessiveness test is stated in terms of the crime.²³

Coker is the first modern application of the precept to the death penalty, and a later section teaches its facts and reasoning in full. For present purposes, the Court framed the question as whether death for the crime of rape of an adult woman is grossly disproportionate and excessive, and it answered yes.²⁴ It did not treat the two grounds as rivals. It held that the death penalty for that crime “falls within both categories,” meaning the no-purpose ground and the gross-disproportion ground, which is why a capital problem should be checked against each ground.²⁵ The defendant in Coker was an escaped prisoner already serving life terms for murder and other violent crimes, yet the Court measured death against the crime of raping an adult woman, a category of offense, and held the penalty excessive for that crime.²⁶ That focus on the category of crime returns in the offense-based bars on capital punishment later in this chapter.

The threshold is demanding because proportionality makes mismatched penalties suspect and leaves severe penalties alone. A plurality in Trop v. Dulles observed, in a passage that was not the basis of its holding, that fines, imprisonment, and even execution may be imposed depending on the enormity of the crime, and Gregg repeated the observation.²⁷ Gregg itself refused to hold that death is invariably unconstitutional as punishment for murder, which marks the top of the scale: the gravest penalty may match the gravest crime.²⁸ The Court has said that the principle bites at the extreme, and in Rummel v. Estelle its example was a legislature that made overtime parking a felony punishable by life imprisonment.²⁹

Outside capital cases the threshold is harder still to cross, and the decisions show where the line has fallen. Rummel upheld a sentence of life with the possibility of parole for a third felony, obtaining $120.75 by false pretenses.³⁰ Three years later Solem v. Helm struck down life without parole for a seventh nonviolent felony, uttering a no-account check for $100, and the Court stressed the contrast with Rummel, who had been eligible for parole.³¹ In Harmelin v. Michigan the controlling opinion explained that the Amendment does not require strict proportionality between crime and sentence and forbids only extreme sentences that are grossly disproportionate to the crime.³² Applying that principle in Ewing v. California, the Court upheld a sentence of 25 years to life for a repeat felon convicted of stealing three golf clubs worth $399 each.³³ Recidivism sentences hold up because the legislature has decided that repeat offenders must be isolated to protect the public, so the sentence answers the whole record and not only the latest offense.³⁴ The practical result is that relief has been available, if at all, only in extreme cases, and long adult sentences, even life terms, have so far withstood attack.³⁵ A later section on case-by-case review returns to the method the Court uses for these challenges.

On an exam stem that stresses how harsh a sentence is, the instinct is to call it excessive. Students lose this issue when they treat severity alone as disproportion. The second test needs facts on both sides of the comparison, the penalty and the offense, so a death sentence for deliberate murder answers differently from the same sentence for the rape of an adult woman, and a life term for a repeat offender with a serious record answers differently from the same term for a minor first offense. Where a capital sentence is challenged, the no-purpose ground is also checked separately, because failing either ground is enough.