What Justice Thomas Can Teach Us About "Cruel and Unusual" Punishments

By Sherry F. Colb

In my FindLaw column this week, I consider the utility of requiring that a punishment be both cruel and unusual before it violates the text of the Eighth Amendment.  The U.S. Supreme Court typically does not divide its analysis into a "cruel" section and then an "unusual" section.  The way in which the infrequency of a punishment does make its way into the analysis, however, is in considering whether a particular penalty fails "evolving standards of decency that mark the progress of a maturing society."  The fact that much of the country (or the world) has turned its back on a particular penal practice -- like executing juvenile offenders, for example -- provides evidence that the practice is "cruel and unusual" and accordingly unconstitutional. 

In this post, I want to consider a point that Justice Thomas made in his dissent from a recent Supreme Court decision, Graham v. Florida, which struck down sentences of life without parole ("LWOP") for juvenile, non-homicide offenders.  The majority opinion concluded that the country had turned its back on LWOP for juvenile, non-homicide offenders, because the sentence is very rarely imposed.  Justice Thomas noted the oddity of this contention, given that the law of an overwhelming majority of states, along with the federal government, does make LWOP sentences available in these circumstances.  The majority's response to Justice Thomas is to say that even though the punishment is theoretically available throughout much of the country, its extremely rare imposition in fact shows that the country has rejected it.

This debate raises the question of what we mean when we say that a punishment is "unusual."  Is a punishment that is barred by most of the states but regularly imposed by one of them unusual?  What about a punishment that is in theory a possibility but is in fact almost never imposed?  The majority in Graham seems to view the relevant variable as the frequency of actual imposition, even when most jurisdictions allow it in theory.

Justice Thomas suggests that if the majority is committed to considering the rarity of a punishment, it ought to be reluctant to invalidate penalties available in most U.S. jurisdictions.

In criticizing the majority's application of its own test, Justice Thomas proposes an alternative interpretation of the rarity with which LWOP is imposed on juvenile, non-homicide offenders.  Rather than showing a consensus building against that sentence, Justice Thomas says that such rarity demonstrates instead how carefully and judiciously courts have been in their sentencing practices, reserving the most severe penalties for only a few, well-selected offenders.  Despite the fact that states could be sentencing juveniles to LWOP all the time, in other words, they in fact rarely do so and thereby prove themselves capable of exercising the very restraint that a majority of the Supreme Court believed had to be unilaterally imposed from above.

Justice Thomas's claim puts the notion of "unusual" in a new and useful light.  It suggests that rarity can sometimes be ambiguous.  It might reveal that most people have become so repelled by a practice and its cruelty that they no longer wish to engage in it.  Or it might instead reveal that the practice is called for very rarely -- because it is extreme -- but that on those rare occasions, it is the correct thing to do.  When much of the country leaves itself the option of imposing a penalty, but actually imposes it very rarely, this seems precisely the kind of rarity that may vindicate, rather than undermine, the legitimacy of having that penalty as an option.

There are, of course, other arguments for opposing sentences for life without parole in general, and for opposing them for juveniles and for non-homicide offenders in particular.  Furthermore, as the Supreme Court said about the death penalty in Furman v. Georgia, if a sentence is rarely imposed, its actual imposition might be arbitrary and discriminatory, rather than tracking the seriousness of a crime.

Still, the notion that the country has turned its back on a punishment that is rarely imposed in practice -- that the punishment has, in effect, become "unusual" in the sense contemplated by the Eighth Amendment -- seems flawed, for precisely the reasons that Justice Thomas articulates.  This conclusion suggests as well that so long as a law remains on the books, its general non-enforcement cannot tell us that much about the community's attitude toward the law and accordingly, cannot reveal whether the penalty prescribed in the law is in fact "unusual" in the "cruel and unusual" sense of the word.