The 8th Amendment is next. By Lisa Needham

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Lisa Needham

25 Oct 2023

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Hardiman at a Heritage Foundation event in October 2021.

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Over the last year, the fallout from the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen has been profound. That case, which essentially eradicated gun laws in America if they didn’t also happen to be gun laws back in 1791, will prove to be one of the most damaging cases to come out of this hyper-conservative court.

But conservative jurists aren’t done rolling us back nearly 250 years. Now, they’re ready to go after the Eighth Amendment and to really put the “cruel” back in “cruel and unusual punishment.”

Last week, a George W. Bush appointee to the Third Circuit Court of Appeals, Thomas Hardiman, gave a speech at Harvard to, you guessed it, the Federalist Society, that was legitimately bloodthirsty. Hardiman is urging the country to go back in time, just as the Bruen case did for the Second Amendment, and read the Eighth Amendment as the founders did. No one rational or even remotely compassionate wants to go back to the 1700s in terms of how we punish people who are convicted of a crime, but we have a whole host of conservative judges who are unbothered by those considerations. 

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In 2019, for example, Hardiman’s colleague on the Third Circuit, David Porter, wrote a majority opinion saying that holding a prisoner in a “dry” cell — one without any plumbing facilities — for nine days was not cruel and unusual punishment. What had the prisoner done to deserve such dehumanizing treatment? He ate an M&M from a bag that a friend who was visiting had brought and had a drink of soda.

The previous year, two Trump appointees on the Sixth Circuit, John Bush and Amal Thapar, penned the majority ruling holding that failing to treat a prisoner’s painful liver disease while incarcerated wasn’t cruel or unusual. And earlier this year, the conservatives on the Ninth Circuit got furious because they couldn’t get the full court to agree to overturn a three-judge panel decision that held the Eighth Amendment prohibits imposing criminal penalties on unhoused people for sitting, sleeping, or lying outside when they cannot obtain shelter.

The modern court approach to cruel and unusual punishment began in 1958, in Trop v. Dulles. There, the Supreme Court started applying a test to Eighth Amendment cases, saying that an understanding of what constitutes cruel and unusual punishment should be evaluated by “evolving standards of decency that mark the progress of a maturing society.” This should be a non-controversial statement. Of course societies evolve and change, continually reassessing the past and framing the future. Punishments that were run-of-the-mill in the 1700s and 1800s, such as public hangings, seem wildly barbaric now. The very nature of modern conservatism, though, is a longing for the brutality of the past, a wish that the worst behaviors of those in power be celebrated. 

Hardiman hates this test. In his speech at Harvard, he complained that paying attention to evolving standards of decency has created a “runaway train of elastic constitutionalism” where judges favor defendants. 

There’s a lot to unpack there. First, the modern state of the American criminal justice system hardly favors defendants. In the federal courts, 89.5 percent of defendants pleaded guilty in 2022. Most federal defendants plead out because of what is known as the “trial penalty.” Defendants who choose to go to trial face a much higher sentence than if they accept a plea deal. In 2015, a review of data published by the Federal Sentencing Commission found that, on average, people who went to trial on a fraud charge got a sentence three times longer than a defendant who pled guilty. Going to trial for burglary and embezzlement leads to an average sentence eight times longer than a plea deal. 

A view inside Angola Prison in Louisiana in October 2013. (Giles Clarke/Getty)

Next, prisons and jails are grim, brutal places. The Marshall Project, which focuses on criminal justice, has written about how teen prisoners in Louisiana are confined to their cells 23 hours per day, about a federal prison in Illinois that is literally deadly, and about a woman forced to give birth in jail despite having a high-risk pregnancy. And that’s just from 2022 alone. 

We don’t have to imagine what a rollback of Eighth Amendment protections would look like, because we’ve already seen the fallout from Justice Clarence Thomas’s unhinged majority opinion in Bruen, where he invented a functionally insurmountable test: If a gun regulation is not “consistent with this Nation’s historical tradition of firearm regulation,” it’s gone. Now, Thomas didn’t mean a “historical tradition” of anything, because as far as he’s concerned, history stopped around the time the country was founded. No, what Thomas means by “historical tradition” is to be stuck in time, fixed in amber back in 1791, a time when very few people had rights. Indeed, there’s something painful and weird about watching Thomas be the hype man for an era where he himself would have had no rights whatsoever. 

Hardiman, unsurprisingly, loves Bruen, and sees it as a model for the future of the Eighth Amendment, saying that he wondered whether the Supreme Court would “return to the text and original meaning of the Eighth Amendment” as it had with the Second Amendment. 

So what would a rollback of protections under the Eighth Amendment look like? Put bluntly, it would give conservative states a lot more opportunities to put people to death. In the last few decades, the Supreme Court — before Trump got to stack the Court with conservative goons — had made a conscious effort to kill fewer people. 

In 2002’s Atkins v. Virginia, the Court held that people with intellectual disabilities could not be put to death. There, Virginia wanted to execute Daryl Atkins. Atkins had an IQ of 59 and the mental age of a child between 9 and 12 years old. Justice John Paul Stevens pointed out that if one subscribes to the theory of deterrence as the reason for capital punishment — that the potential of being put to death will stop people from doing crime — that is predicated on the potential criminal being able to process the possibility of execution. If someone is mentally incapable of understanding the consequences of their actions, they won’t be deterred by that consequence.

Clarence Thomas, pictured here with Mitch McConnell in October 2021, is a big proponent of cruel and unusual punishment. (Drew Angerer/Getty)

Then, in 2005 in Roper v. Simmons, the Court struck down the juvenile death penalty, holding that people who committed their crimes when they were under 18 could not be put to death. This finally put the United States in line with nearly all other countries, which forbid the death penalty for minors. Justice Anthony Kennedy, writing for the 5-4 majority, noted that we don’t let minors vote, serve on juries, or marry without the consent of their parents, precisely because we as a society now know that minors are not yet fully developed or capable of seeing the consequences of their actions.  

Seven years later, in Miller v. Alabama, the Court declared that automatically sentencing juveniles to life without parole was unconstitutional, with Justice Elena Kagan writing that “a sentencer misses too much if he treats every child as an adult” and noted that juveniles would be less likely than adult defendants to be able to deal with police officers or prosecutors or assist in their own defense. 

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Then, of course, the Court flipped, and in 2021, the conservative majority upheld Mississippi’s life without parole sentence against Brett Jones, who had committed his crime when he was 15. If that feels like it flies in the face of the holding in Miller, that’s because it does. 

Conservatives hated these cases. Dissenting in Atkins, Justice Antonin Scalia literally complained that in 1791, the execution of someone with mild intellectual disabilities would have been just fine. In Roper, joined by Chief Justice John Roberts and Justice Thomas, Scalia was big mad that the Court had looked at scientific and sociological studies in coming to the perfectly well-known conclusion that children are less able to understand consequences and alter their behavior accordingly. In his dissent in Miller, Thomas wrote that at the time of the adoption of the Bill of Rights, the cruel and unusual punishment prohibition was understood only to mean that torturous methods of punishment were prohibited, so categorical bans on the death penalty or life without parole shouldn’t exist, because those aren’t torture. 

The lethal injection chamber in San Quentin State Prison in California in March 2019, before it was dismantled. (California DOC via Getty)

Except that putting people to death is actually torture. Besides the part where the state is killing someone and that of itself is barbaric, besides the part where the death penalty is applied inconsistently and arbitrarily, particularly harming people of color, there’s the part where states are brutalizing the people they are trying to kill. The current prevailing method of lethal injection results in horrifying situations like people taking over 90 minutes to die, gasping for air the whole time. Theoretically, people are supposed to be given a drug to render them unconscious before the administration of the lethal drug, but there are multiple times when that doesn’t work. Officials often have trouble finding veins, with one person being stuck ten to twelve times, puncturing his bladder and femoral artery. 

The vision offered here isn’t just one of brutality, though of course that is part of the appeal to conservatives. It’s one of simplicity, and it’s one of the hallmarks of the Trump era. There’s no nuance. There’s no grappling with morality or decency or thinking about how the world has changed in the last 200+ years. There’s just a knee-jerk adherence to a worldview frozen in time and a belief that mercy is for fools and suckers. 

And this is the world conservatives like Judge Hardiman want.

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