Federalism Battles in the War on Drugs: Cruel and Unusual Punishment

Given the advent of state legalization of marijuana for medicinal – and now in two States, recreational – purposes, the federalism battles in the war on drugs can be expected to grow in intensity.  In President Obama’s first term, the U.S. Attorneys in California took an aggressive stance on medical marijuana facilities, threatening their owners and, in some cases, even the landlords that rented them space, with criminal prosecution under federal law.  Now some of those chickens have come home to roost.  Last month, California medical marijuana dispensary operator Aaron Sandusky received ten years in federal prison.

Let that sink in for a moment:  a decade in prison for conduct that is perfectly legal under state law.

Cases like Sandusky’s form part of the reason I have called for a more robust reading of the Eighth Amendment as it applies in federal cases.  That last sentence, a stickler might note, is redundant:  the Eighth Amendment applies only in federal cases.  But we have gotten so used to speaking of the Eighth-Amendment-as-incorporated-by-the-Fourteenth as simply “the Eighth Amendment” that I feel the caveat is necessary.  Indeed, that is part of the problem I have identified.  The “Eighth Amendment” standard the Supreme Court has developed in non-capital cases stems entirely from state cases:  Rummel v. Estelle, Hutto v. Davis, Solem v. Helm, Harmelin v. Michigan, Ewing v. California, and Lockyer v. Andrade.  That is to say, they are Fourteenth Amendment cases and not, strictly speaking, Eighth Amendment cases (and I think that, as attorneys, we should always be “strictly speaking”).  That standard is extraordinarily deferential to legislative decisions.  In effect, if the legislature could reasonably think that the carceral sentence in question served one of the goals of punishment – deterrence, incapacitation, rehabilitation, or retribution – the punishment meets constitutional requirements.  But that standard is so deferential to legislative judgments in large part because it comes from cases involving state legislative judgments.  There is a heavy dose of federalism in the cases listed above.

Such deference is misplaced when it comes to the judgment of Congress, for it was precisely the judgment of Congress – not the executive or judicial branch – that the Cruel and Unusual Punishments Clause was meant to check.  We know this because, for one thing, the Eighth Amendment (like most of the Bill of Rights) was originally going to be placed within the text of Article I before Congress decided to list the amendments out as addenda to the Constitution.  For another, the few statements made during the ratification period about the need for a clause banning cruel and unusual punishments were aimed at the danger of Congress creating such punishments.  I do not pretend to know precisely what the framers and ratifiers of the Eighth Amendment thought “cruel and unusual punishments” were.  But I do think they would be stunned to find out that, in essence, Congress can punish in any way that it wants.

Once we determine that the Cruel and Unusual Punishments Clause was originally understood as containing some requirement of proportionality, and the overwhelming evidence is that it does (I will explain in a later post why the Scalia-Thomas view to the contrary is erroneous), the difficult task is determining the benchmark:  to what do federally imposed punishments have to be proportionate?  For me, especially given the states’-rights orientation of the Anti-Federalists, who demanded the addition of the Bill of Rights, the best answer is the punishment meted out by the States.  That may mean that federal punishments for an offense cannot exceed:  how the States generally punish for that offense; or the harshest punishment meted out by any State for that offense; or how that offense is punished by the State in which the crime occurred.  I prefer the last option for reasons explained in my work – it is probably most in line with what the Anti-Federalists were thinking.  It is also easily administrable, at least compared to the first option.

Mr. Sandusky’s case represents an extreme example, where his actions do not even constitute an offense under state law.  But his case also fits within what I think the Anti-Federalists were most afraid of.  One wishes we could just ask George Mason or Patrick Henry:  does your Cruel and Unusual Punishments Clause forbid Congress from punishing someone who committed an act that the State could have criminalized but chose not to?  I think I know what they would say.