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Cruel and Usual Punishment: Transcendental Nonsense and the Functional Approach at the Same Time

-- By WenweiLai - 25 Feb 2010

I. The current cruel and unusual punishment jurisprudence of the Supreme Court: Roper

The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Is executing a juvenile under 18 cruel and unusual? The Supreme Court answered this question in the affirmative in Roper (2005), basing its decision on some transcendental nonsense. Interestingly, the decision is criticized most often not for its legal reasoning, but for its use of foreign sources to support its conclusion.

A. Transcendental nonsense adopted by the Court

“The evolving standards of decency that mark the progress of a maturing society” has been the Court’s test in determining whether a punishment is so disproportionate as to be “cruel and unusual” since a 1958 case. Such a definition falls into what Cohen called a vicious cycle. Court decisions are always part of the evolution of social standards; sometimes they lead the evolution. The fact that the Court ruled executing a juvenile unconstitutional made the execution a violation of “the evolving standards.” (Although I don’t have any empirical evidence on this specific question, my reasoning here is based on other countries’ experience in the abolition of death penalty. Opposition to the death penalty appears to grow the longer the country has been without the punishment.) So it is putting the cart before the horse for the Court to regard “the evolving standards” as a reason for declaring the execution unconstitutional.

In Stanford (1989), the case overruled by Roper, another transcendental nonsense was put forward to explain the previous one: “national consensus,” which meant the execution could be abolished only when there was a national consensus that it should no longer exist. If there had been any national consensus, how could this have been hotly debated by the opponents and proponents? This requirement is a convenient tool for the conservatives to uphold the constitutionality of a punishment. However, when a decision tries to keep the national consensus requirement and abolish an existing punishment at the same time, problems will follow.

B. The Court is, in fact, a realistic Court under the cover of transcendental nonsense

In Roper, the majority claimed there had been a national consensus that executing a juvenile was cruel and unusual. Therefore, in citing the international trend toward the same direction, the court was only looking for “confirmation for our own conclusions.” However, there was no such consensus at all: only thirty states had abolished such execution before the Roper decision was made. A sixty percent majority was hardly a “consensus.” It was abolished by the Court not because of a national consensus, but because the instability and the emotional imbalance of young people might often be a factor in the crime, as scientific and sociological research showed. And this opinion was supported by the overwhelming weight of international sources.

II. Foreign sources as a functional approach in Constitution interpretation

A. The use of foreign sources should be justified

Law is what it does. Therefore, courts are justified in considering what the laws they are making will do. In Cohen’s words, “Only by… projecting beyond the decision the lines of its force upon the future, do we come to an understanding of the meaning of the decision itself.” Scientific and sociological research provides courts with a good source in predicting the effect of the newly-made law. However, the research is only prediction; for empirical evidence, courts must look at other countries where a similar scheme has been in practice for a while. The experiences of other countries can help courts better understand the possible outcome that their judgments will bring about. In this sense, the use of foreign sources is highly justified.

B. So, are the dissenters out of their minds?

All my reasoning above is based on the assumption that the functional approach, a product of the so-called legal realism, is the correct one. However, this assumption does not hold true to everyone. As Justice Scalia said in his Roper dissent, “this is no way to run a legal system.” According to the legal philosophy which he purports to follow, such a law does not change and these particular words ("cruel and unusual") have a fixed meaning. Therefore, the functional approach is no justification for the use of foreign sources.

C. Transcendental nonsense from a strategic perspective

If there had been five Scalias on the bench, executing juveniles would have still been constitutional. There were not, so the liberals got what they wanted. However, they got it at a cost: the Roper decision was a mixture of the functional approach and some transcendental nonsense like “the evolving standards of decency that mark the progress of a maturing society.” The two ideas are incompatible, and the combination causes confusion and ambiguity, just as Blackstone did in throwing Hobbs and Coke together. But we have to be practical here: the majority needed five votes. If they had given up the transcendental nonsense, they would not have got five votes. To get the important fifth vote, the price that had to be paid was to let him (the Roper majority was written by Justice Kennedy) include the transcendental nonsense in the opinion.

From a purely scholastic point of view, this is a bad approach, and it makes the decision seem fragile in the face of dissenters’ criticism: if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. On the other hand, this is a smart approach in practice. The law is what it does, not how it does. As a Chinese leader said, “I don’t care if it’s a white cat or a black cat; as long as it can catch mice it’s a good cat.”

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