Standards of eighteenth-century British criminal justice came up in the Supreme Court this week. The issue was whether a life sentence for a seventeen-year-old convicted of two armed robberies, or for any juvenile offender who hadn’t committed murder, was “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution. From Adam Liptak’s coverage in the New York Times:
As usual in cases involving the Eighth Amendment, the justices debated whether the Constitution should consider, in a one common formulation, “the evolving standards of decency that mark the progress of a maturing society.”I’m not surprised to see Stevens and his colleagues reminding us how British law once allowed seven-year-olds to be hanged; that fact is a reminder about just how cruel past societies could be.
Justice [Clarence] Thomas said the court should look to the practices at the time the Bill of Rights was adopted. Given that capital punishment could be imposed on people as young as 7 in the 18th century, he said, Mr. [Terrance] Graham’s punishment would almost certainly have been deemed acceptable back then.
Justice John Paul Stevens, in a concurrence joined by Justices [Ruth Bader] Ginsburg and [Sonia] Sotomayor, said Justice Thomas’s “static approach to the law” did not allow for societal progress and would entail unacceptable human consequences.
“Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old,” Justice Stevens wrote. “Knowledge accumulates,” he wrote. “We learn, sometimes, from our mistakes.”
What seems remarkable is that Thomas actually brought up hanging seven-year-olds first. He appears to accept execution of children of that age as just if allowed by a legislature. Thomas’s allusion comes in footnote three of his dissent, which Justices Antonin Scalia and Samuel Alito joined. That note points to an opinion that Scalia wrote for the court in 1989—a decision overturned in 2005.
Thomas’s dissent also misquotes the Scalia opinion, which no one seems to have noticed. Thomas wrote that British common law allowed “capital punishment to be imposed on a person as young as age 7.” Scalia actually, and correctly, had written that the punishment was allowed for “anyone over the age of 7”—i.e., eight or above.
The “evolving standards of decency” formulation is over half a century old now, coming from Trop v. Dulles in 1958, which in turn cited Weems v. United States in 1910. In sum, the belief that courts shouldn’t define “cruel and unusual punishment” by eighteenth-century standards has been U.S. law for a century.
Stevens’s two-paragraph response to Thomas’s dissent concludes:
Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete. . . . Standards of decency have evolved since 1980. They will never stop doing so.TOMORROW: Did the British justice system of the 1700s actually execute young children?