Saturday, February 02, 2013
Hello and Happy Groundhog Day
Thanks to Dan and the gang for inviting me to guest post on Prawfs once more. For those who don’t know my work, my main interests are in criminal law, criminal procedure, constitutional law, sentencing, and the death penalty. My most recent, and ongoing, research has focused on looking at the extent to which federalism constraints are built into the Bill of Rights, tying limitations on federal power to the norms of the States. You can expect some of my posts to be on this research and other ideas I’ve had for scholarship, as well as pending Supreme Court cases, thoughts on teaching, and, well . . . my philosophy is that a blog post should be somewhere between a law review article and the "You Know What Really Grinds My Gears?" segment from Family Guy.
As has been my practice in the past, I will not respond to anonymous or pseudonymous comments. As one prominent legal scholar recently wrote: “If you have an argument, make it, and use your name.”
For my initial post I was going to honor Groundhog Day – the movie, not the day – by simply cutting and pasting one of my posts from last year. However, I was concerned that no one would notice. But I will perhaps give you an eerie sense of déjà vu by discussing my view of the Cruel and Unusual Punishments Clause in my opening post. My main area of interest had been the federal death penalty in non-death States. I had made the argument that the Cruel and Unusual Punishments Clause could be understood as forbidding the federal government from inflicting a type of punishment not authorized by the laws of the State where the criminal conduct occurred.
In my latest work, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. 69 (2012), published last November, I update my research and expand on that argument. I think one can articulate my claims in three ways. First, I argue that, because the Supreme Court’s jurisprudence on the Cruel and Unusual Punishments Clause as applied to carceral sentences stems from state, not federal, cases it is exceedingly deferential (except for the recent juvenile LWOP cases) largely due to considerations of federalism. Therefore, a more robust and searching analysis is appropriate in looking at whether federal sentences of imprisonment constitute “cruel and unusual punishment.” Second, I argue that such a more searching analysis should look to the laws of the several States to determine whether a federal punishment is “cruel and unusual.” That is to say, if a federal defendant is punished more harshly for an offense than he could be in any State, the punishment is “cruel and unusual.” And I give a few recent examples where this has happened. Finally, I suggest that the proper comparator may be, not the States generally, but the State where the criminal conduct occurred. This would mean that a federal sentence is “cruel and unusual” if it exceeds what the defendant could have received in state court for the same crime in the State where it occurred.
As in my prior work, I rely heavily on the claim that we ought to give primacy to the general views of the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as a way of preserving both individual rights and state sovereignty. I suggest that an emphasis on the views of the Anti-Federalists should give us a more state-centered, and perhaps state-specific, interpretation of the Bill of Rights than is currently the case.
I’ll leave it at that for now, and go into some of the nitty-gritty and possible implications and further applications of these ideas in later posts.
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Nice to see you on Prawfs, Mike! I'm looking forward to future posts.
Posted by: Rick Bales | Feb 3, 2013 5:55:09 AM