Magna Carta Clause 20 Cruel and Unusual Punishment. (Originally Known As Disproportionate Punishment)

Transcription

1 Magna Carta Clause 20 Cruel and Unusual Punishment (Originally Known As Disproportionate Punishment)

2 Magna Carta Clause 20 In Latin Liber homo non amercietur pro parvo delicto, nisi secundum modum delicti; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo, salva mercandisa sua; et villanus eodem modo amercietur salvo waynagio suo, si inciderint in misericordiam nostram; et nulla predictarum misericordiarum ponatur, nisi per sacramentum proborum hominum de visneto.

3 Clause 20 Origin of Prohibition on Cruel and Unusual Punishment For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on

4 Clause 20 Alternate Translation A freeman shall not be amerced for a slight offence, except in accordance with the degree of the offence; and for a grave offence he shall be amerced in accordance with the gravity of the offence, yet saving always his contenement ; and a merchant in the same way, saving his merchandise ; and a villein shall be amerced in the same way, saving his wainage if they have fallen into our mercy:

5 Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

6 Harmelin v. Mich., 501 U.S. 957,111 S. Ct. 2680,115 L. Ed. 2d (1991) Petitioner Harmelin was convicted under Michigan law of possessing more than 650 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. The State Court of Appeals affirmed, rejecting his argument that the sentence was "cruel and unusual" within the meaning of the Eighth Amendment. He claims here that the sentence is cruel and unusual because it is "significantly disproportionate" to the crime he committed, and because the sentencing judge was statutorily required to impose it, without taking into account the particularized circumstances of the crime and of the criminal.

7 Harmelin v. Mich. It should be apparent from the above discussion that our 5-to-4 decision eight years ago in Solem was scarcely the expression of clear and well accepted constitutional law. We have long recognized, of course, that the doctrine of stare decisis is less rigid in its application to constitutional precedents, see Payne v. Tennessee, ---U.S. ----, ----, 111 S.Ct. 2597, 2610, ---L.Ed.2d ----; Smith v. Allwright, 321 U.S. 649, 665, and n. 10, 64 S.Ct. 757, 765, and n. 10, 88 L.Ed. 987 (1944); Mitchell v. W.T. Grant Co., 416 U.S. 600, , 94 S.Ct. 1895, , 40 L.Ed.2d 406 (1974) (Powell, J., concurring); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, , 52 S.Ct. 443, , 76 L.Ed. 815 (1932) (Brandeis, J., dissenting), and we think that to be especially true of a constitutional precedent that is both recent and in apparent tension with other decisions. Accordingly, we have addressed anew, and in greater detail, the question whether the Eighth Amendment contains a proportionality guarantee with particular attention to the background of the Eighth Amendment (which Solem discussed in only two pages, see 463 U.S., at , 103 S.Ct., at ) and to the understanding of the Eighth Amendment before the end of the 19th century (which Solem discussed not at all). We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.

8 Harmelin v. Mich. Solem based its conclusion principally upon the proposition that a right to be free from disproportionate punishments was embodied within the "cruell and unusuall Punishments" provision of the English Declaration of Rights of 1689, and was incorporated, with that language, in the Eighth Amendment. There is no doubt that the Declaration of Rights is the antecedent of our constitutional text. (This document was promulgated in February 1689, and was enacted into law as the Bill of Rights, 1 Wm. & Mary, Sess. 2, ch. 2, in December See Sources of Our Liberties (R. Perry & J. Cooper eds. 1959); L. Schwoerer, Declaration of Rights, 1689, 279, (1981).) In 1791, five State Constitutions prohibited "cruel or unusual punishments," see Del. Declaration of Rights, 16 (1776); Md. Declaration of Rights, Art. XXII (1776); Mass. Declaration of Rights, Art. XXVI (1780); N.C. Declaration of Rights X (1776); N.H. Bill of Rights, Art. XXXIII (1784), and two prohibited "cruel" punishments, Pa.Const., Art. IX, 13 (1790); S.C.Const., Art. IX, 4 (1790). The new Federal Bill of Rights, however, tracked Virginia's prohibition of "cruel and unusual punishments," see Va. Declaration of Rights 9 (1776), which most closely followed the English provision. In fact, the entire text of the Eighth Amendment is taken almost verbatim from the English Declaration of Rights, which provided "[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted."

9 Harmelin v. Mich. Most historians agree that the "cruell and unusuall Punishments" provision of the English Declaration of Rights was prompted by the abuses attributed to the infamous Lord Chief Justice Jeffreys of the King's Bench during the Stuart reign of James II. See, e.g., Schwoerer, supra, at 93; 4 W. Blackstone, Commentaries *372. They do not agree, however, on which abuses. See Ingraham v. Wright, 430 U.S. 651, , 97 S.Ct. 1401, , 51 L.Ed.2d 711 (1977); Furman v. Georgia, 408 U.S. 238, , 92 S.Ct. 2726, , 33 L.Ed.2d 346 (1972) (MARSHALL, J., concurring). Jeffreys is best known for presiding over the "Bloody Assizes" following the Duke of Monmouth's abortive rebellion in 1685; a special Commission led by Jeffreys tried, convicted, and executed hundreds of suspected insurgents. Some have attributed the Declaration of Rights provision to popular outrage against those proceedings. E.g., Sources of Our Liberties, supra, at 236, n. 103; Note, What Is Cruel and Unusual Punishment, 24 Harv.L.Rev. 54, 55, n. 2 (1910); see also 3 J. Story,

10 Harmelin v. Mich. But the vicious punishments for treason decreed in the Bloody Assizes (drawing and quartering, burning of women felons, beheading, disembowling, etc.) were common in that period indeed, they were specifically authorized by law and remained so for many years afterwards. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, (1969); 4 Blackstone, supra, at * Thus, recently historians have argued, and the best historical evidence suggests, that it was not Jeffreys' management of the Bloody Assizes that led to the Declaration of Rights provision, but rather the arbitrary sentencing power he had exercised in administering justice from the King's Bench, particularly when punishing a notorious perjurer. See Granucci, supra, at ; Schwoerer, supra, at Accord, 1 J. Stephen, A History of the Criminal Law of England 490 (1883); 1 J. Chitty, Criminal Law 712 (5th Am. ed. 1847). Jeffreys was widely accused of "inventing" special penalties for the King's enemies, penalties that were not authorized by common-law precedent or statute. Letter to a Gentleman at Brussels, giving an account of the people's revolt (Windsor Dec. 2, 1688), cited in L. Schwoerer, The Declaration of Rights, 1689, p. 93 n. 207

11 Clauses 21 and Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offense. 22. A clerk shall not be amerced in respect of his lay holding except after the manner of the others aforesaid; further, he shall not be amerced in accordance with the extent of his

12 English Petition of Right 1628 Clause VII And wheras also by authority of Parliament, in the five-and-twentieth year of the reign of King Edward III., it is declared and enacted, that no man shall be forejudged of life or limb against the form of the Great Charter and the law of the land; and by the said Great Charter and other the laws and statutes of this your realm, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm, or by acts of Parliament: And whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm: nevertheless of late times divers commissions under your Majesty s great seal have issued forth, but which certain persons have been assigned and appointed commissioners, with powers and authority to proceed within the land, according to the justice of martial law, against such soldiers and mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death

13 The Massachusetts Body of Liberties December For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruell.

14 Other Colonial Sources Pennsylvania Frame of Government, 1682 New York Rights and Privileges, 1683

15 The English Bill of Rights December 16, 1689 An Act for Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown Whereas the Lords Spiritual and Temporal, and Commons, assembled at Westminster, lawfully, fully, and freely representing all the estates of the people of this realm, did upon the Thirteenth day of February, in the year of our Lord One Thousand Six Hundred Eighty-eight, present unto their Majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain Declaration in writing, made by the said Lords and Commons, in the words following, viz.: Whereas the late King James II., by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom: Wrong 11. And excessive fines have been imposed; and illegal and cruel punishments inflicted. Remedy

16 Continental Origins Northwest Ordinance, 1787

17 State Ratifying Conventions North Carolina In Convention, August 1, th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Virginia - In Convention, Richmond, Friday, June 27, th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual

18 State Constitution Origins Virginia Declaration of Rights, Section 9 Pennsylvania Constitution, Sections 38 and 39 Delaware Declaration of Rights, Section 16 Maryland Declaration of Rights, Article XXII North Carolina Declaration of Rights, Article X South Carolina Constitution, Article XL Massachusetts Declaration of Rights, Article XXVI New Hampshire Bill of Rights, Articles XVIII and XXXIII