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Thursday, February 21, 2013

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.

Posted by Michael J.Z. Mannheimer on February 21, 2013 at 03:44 PM in Constitutional thoughts | Permalink


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Still a bit confused here. What would be the permissible federal punishment for an offense that is criminalized under some states' laws but not others'? Would every federal judge have to look to state law at sentencing? Which state's law would apply? If a resident of Delaware is prosecuted for conduct committed in Maryland, would the maximum sentence be that provided by Delaware law or Maryland law?

Posted by: Griff | Feb 25, 2013 2:51:36 PM


Yes, my answer to the treason example is that treason against the United States is a different offense from treason against the State of New York. I read the Anti-Federalists as accepting that the federal government was freer to define crimes and prescribe punishments where a truly distinct federal interest was at stake. What they were concerned about, among other things, of course, is that the federal government would create a system of penal laws that replicated state penal law. Patrick Henry even mentions in his June 16, 1788, speech in the Virginia ratifying convention that the federal government could criminalize "petty larceny." Curiously, though, he seems content to trust that Congress would be wise enough not to do so, but then goes on to say that he did NOT trust Congress when it comes to punishments.

I appreciate the Commerce Clause point. Mason and Henry (and Centinel, and other Anti-Federalists) foresaw that the broad clauses of Article I might be used someday to justify sweeping national power (as with Henry's petty larceny example). They most often cited the Necessary and Proper Clause as being particularly dangerous. But I think it is mistaken to read the Clauses of the Constitution in "splendid isolation" from one another, as we conventionally do, rather than synergistically. If the Anti-Federalist response to the sweeping clauses of Article I was to demand a Bill of Rights, it makes sense to read those rights as placing a gloss on those Clauses. So perhaps the real question is not whether Congress has power under the Commerce Clause to regulate the intrastate sale of marijuana but whether, under the Commerce Clause as cabined by the Eighth Amendment, Congress can PUNISH the instrastate sale of marijuana more harshly than the State itself does. To put it another way, perhaps Congress can regulate more than it can criminally punish. Unfortunately, the Court has not distinguished penal laws from non-penal laws in its Commerce Clause jurisprudence.

Posted by: Michael J.Z. Mannheimer | Feb 22, 2013 12:13:45 AM

From the post: "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."

I appreciate the drama, but I don't think I get the legal argument. State laws don't prohibit treason against the United States, but I don't think we would say that it violates the 8th Amendment for the federal government to punish treason against the United States. Given that the Constitution repeatedly refers to treason prosecutions, that would be a surprising result. Or is your view that federal treason prosecutions do violate the 8th Amendment?

One response would be that treason is different because it implicates genuine federal interests, while intrastate marijuana growing and distribution does not. But it seems to me that this argument would really be a complaint against the Supreme Court's commerce clause jurisprudence, and specifically reading it to allow the federal government to punish even purely intra-state commerce. Put another way, if George Mason and Patrick Henry would be shocked about this, they would be shocked to learn that the federal government was thought to have any power to regulate that kind of case under Article I -- not that the punishment was cruel and unusual punishment under the 8th Amendment.

Posted by: Orin Kerr | Feb 21, 2013 11:01:35 PM

This is strange. At some point, the federal government has powers because states would not properly honor certain interests if that is not the case. So, yes, sometimes the feds will prosecute something a specific state will have no big concern over. Let that sink in.

The concern here is interstate commerce. A single state very well might not have much concern about it. A MAJOR reason for the Constitution, however, was to give the nation as a whole power over this question, reducing state power in the process.

Whatever the Anti-Federalists "demanded," this holds true & each side voted on the 8A, not just one side. Proper 8A balancing very well might take into consideration state interests and local discretion, but the professor here has a tendency imho to put to put all his eggs in one basket to too much of a degree.

Posted by: Joe | Feb 21, 2013 9:03:42 PM

PS, I realize that your post suggests that yes, it is quite unusual. I just find that surprising, and think it might merit some explanation rather than being presented as self-evidently horrifying. Federal interests may be different than state interests; why shouldn't their crimes be different?

Posted by: Griff | Feb 21, 2013 6:14:50 PM

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

I'm with you on the merits here, but I'm not sure this is the way to frame what's wrong. Is it really so unusual for something to be a federal crime without also being a state crime in a given state?

Posted by: Griff | Feb 21, 2013 6:03:30 PM

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