How Should Originalist Legislators Think About Mandatory Minimum Drug Laws?
Imagine you are a state legislator — perhaps you don’t need to imagine! — who believes the following:
- The U.S. Constitution should be interpreted according to the original meaning of the text;
- Legislation that violates the U.S. Constitution so interpreted is unconstitutional; and
- The Legislature shouldn’t approve any unconstitutional legislation.
How should a legislator who accepts those premises approach the issue of mandatory minimum drug laws? Assume the legislator believes mandatory minimum drug sentencing laws are good public policy. Should the legislator continue to support them? A 2017 law review article in the Georgetown Law Journal by University of Florida Law Professor John Stinneford makes the case — albeit not explicitly — that originalist legislators who sincerely respect constitutional limits on their power should be skeptical of mandatory minimums.
The Eighth Amendment to the U.S. Constitution forbids “cruel and unusual punishments.” Therefore, if a given mandatory minimum is a “cruel and unusual punishment,” then the constitution would forbid that mandatory minimum. The question for originalists is whether a given mandatory sentence is “cruel and unusual” according to the meaning of those words at the time the U.S. Constitution was adopted.
In his article, titled “The Original Meaning of Cruel,” Professor Stinneford analyzes recent Eighth Amendment jurisprudence, noting that a plurality of the Court has taken the view that “a punishment could only be cruel if it involved cruel intent,” based in part on what some Justices believe was the original meaning of “cruel.” Stinneford rejects the view that the original meaning of “cruel” was “cruel intent,” arguing instead that the original meaning of “cruel” is “unjustly harsh.”
Stinneford makes a compelling case. Consider:
In virtually every discussion of cruel and unusual punishments, the main question was whether the punishment caused an unjust degree of suffering. Therefore, our inquiry must focus on the cruel-intent requirement. Does the evidence show that eighteenth and early-nineteenth century speakers considered the cruel intent of the punisher to be part of the minimum factual criteria necessary to establish that a punishment is cruel and unusual?
The answer is no. The linguistic and historical evidence demonstrates that a punishment is cruel and unusual within the original meaning of the Cruel and Unusual Punishments Clause if its effects are unjustly harsh in light of longstanding prior punishment practice.Research has revealed no instance in the late-eighteenth or early-nineteenth century in which anyone claimed that the cruel intent of the punisher was part of the criteria for determining whether a punishment was cruel and unusual.
Stinneford goes on to cite:
. . . one eighteenth-century case decided under the Virginia Declaration of Rights, the court held that a punishment that caused a greater risk of unjust suffering than was permissible at common law was cruel and unusual, even though there was no showing that the jury that imposed the sentence was even aware of this risk.
He concludes:
In other words, there is both an absence of evidence that a public official’s cruel intent was part of the original legal meaning of the word “cruel” and affirmative evidence that such cruel intent was not part of this meaning. . . . The purpose of the Cruel and Unusual Punishments Clause is to prevent unjust suffering, not to prevent the coarsening of public sensibilities.
The argument is much deeper than what can be reprinted here, of course. Stinneford examines the possible meanings of the word “cruel” in “late-eighteenth and early-nineteenth century England and America, as demonstrated by the two leading dictionaries of the era,” then analyzes the relationship of the word “cruel” to other legal terms in the Eighth Amendment (“unusual” and “excessive”). Finally, Stinneford:
focuses on the use of the word “cruel” in four formal legal contexts: Seventeenth- and eighteenth-century discussions of the English “cruell and unusuall punishments” clause, debates in the state conventions for ratification of the United States Constitution and in the first Congress concerning the need for a prohibition of cruel and unusual punishments, early cases adjudicating claims that a punishment violated the Cruel and Unusual Punishments Clause or a state-law analogue, and early legal treatises discussing cruel and unusual punishments.
Stinneford also makes a strong case that the prohibition on “cruel and unusual punishments” is conceptually related to the other prohibitions in the Eighth Amendment, viz., excessive bail and excessive fines. He writes:
If cruel and unusual punishments are conceptually related to excessive bail and excessive fines, it must be through the notion of undue harshness. Just as bail or a fine can be so large as to exceed the bounds of justice, so too can a punishment be so harsh as to exceed those bounds. As Justice Field wrote in O’Neil v. Vermont, “The whole inhibition [of the Eighth Amendment] is against that which is excessive . . .”
Stinneford concludes:
. . . a punishment might also be cruel and unusual because it is too harsh in relation to its justification. For example, it would be cruel and unusual to impose a life sentence for a parking violation but it would not be to impose it for murder. In the first case, the sentence is too harsh in light of its justification; in the second, it is not. Furthermore, the Cruel and Unusual Punishments Clause directs us to measure proportionality in light of longstanding prior punishment practices. If a defendant receives a punishment within the range traditionally given for the same or similar crimes, it is not cruel and unusual. If the punishment is harsher than that range permits, it is cruel and unusual. . . . A disproportionate punishment is one that inflicts significantly more pain than the punishments that came before it for the same or similar crimes.
Finally, Stinneford offers a standard for judging whether a given punishment is “cruel and unsual.”
If a given punishment heightens the risk of severe, unjustified harm significantly beyond the baseline risk established by longstanding prior practice, it is cruel and unusual, even if no government official actually foresaw the harm.
What does this mean for mandatory minimum drug laws? Stinneford doesn’t explore the issue in his article. However, in a previous article in the Virginia Law Review, “Rethinking Proportionality,” Stinneford applies the same basic framework to Michigan’s infamous “650 Lifer” mandatory minimum drug law. That law imposed a mandatory life sentence with no possibility of parole for a first-time offender convicted of possessing with intent to distribute 650 grams of cocaine. As Stinneford notes,
The punishment required by the statute was much harsher than had previously been required in Michigan or any other American jurisdiction. Prior to 1978, there was no mandatory minimum punishment for the crime in Michigan, and the maximum punishment available for the crime was twenty years. No other state’s sentencing statute required a mandatory minimum sentence of more than fifteen years, and federal law required a mandatory minimum sentence of five years imprisonment.
Stinneford writes that the Michigan law “was new and was significantly harsher than prior practice would support,” and concluded that, “The Court should have found the punishment cruel and unusual.”
On the relationship between proportionality and the Cruel and Unusual Punishments Clause, Stinneford concludes:
The Cruel and Unusual Punishments Clause was meant to prohibit excessive punishments as well as barbaric ones. A punishment’s proportionality is to be measured primarily in terms of prior practice. If the punishment is significantly harsher than the punishments that have previously been given for the offense, it is likely to be excessive relative to the offense.
If Professor Stinneford is correct, then an originalist interpretation of the Cruel and Unusual Punishments Clause prohibits excessive punishments, and a punishment is excessive “if its effects are unjustly harsh in light of longstanding prior practice.” Therefore, an originalist interpretation of the Cruel and Unusual Punishments Clause prohibits punishments that create unjustly harsh effects in light of longstanding prior practice.
Originalist legislators who take seriously constitutional constraints on legislative power must either accept Stinneford’s argument or offer a more compelling alternative. In the absence of the latter, intellectual honesty requires that they consider whether mandatory minimum drug laws “create unjustly harsh effects in light of longstanding prior practice.”
This analysis will vary from state to state (and even from statute to statute within states). I find it difficult to believe that a disinterested analysis of the effects of mandatory minimum drug laws — especially those in Florida, where statutes mandate decades in prison for simple possession of a couple dozen painkillers, even for first-time offenders — would leave any reasonable observer unconvinced that they are unjustly harsh in light of longstanding prior practice.
Set aside the irrefutable claim that mandatory minimum drug laws are bad policy. On purely constitutional grounds, what does Stinneford’s analysis mean for our hypothetical originalist legislator?
Recall that our hypothetical legislator accepts the following premises:
- The U.S. Constitution should be interpreted according to the original meaning of the text;
- Legislation that violates the U.S. Constitution so interpreted is unconstitutional; and
- The Legislature shouldn’t approve any unconstitutional legislation.
Once that legislator is convinced 1) that Professor Stinneford’s interpretation is correct, and 2) that a given mandatory minimum yields unjustly harsh effects, the legislator must either abandon support for that mandatory minimum, or abandon any sincere commitment to constitutional restraints on legislative power.
