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Qualitative and Quantitative Proportionality: a Specific Critique of Retributivism

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Qualitative and Quantitative Proportionality: a Specific Critique of Retributivism Qualitative and Quantitative Proportionality: A Specific Critique of Retributivism JOHN D. CASTIGLIONE* This Article presents a normative model ofproportionalityreview under the Cruel and Unusual Punishments Clause. The model divides proportionality review into two organizing concepts: "quantitativeproportionality, " which concerns the temporal length of the sentence imposed, and "qualitative proportionality," which concerns the methods used to punish the individual and the conditions under which the punishment is imposed With the quantitative-qualitative structure suggests that the Cruel and Unusual Punishments Clause should be understood to mandate review of the qualitative proportionality of the punishment, but not its quantitative proportionality. The key feature of this model is an appreciationfor the role of human dignity as that concept relates to the Eighth Amendment. As the Supreme Court has recognized, the basic concept underlying the Eighth Amendment is "nothing less than the dignity of man. " The quantitative/qualitative proportionality model respects this guidance by suggesting that only punishments that are truly violative of human dignity must be invalidatedas disproportional.Further, this model is consistent with the text of the Eighth Amendment, relieves the structural tensions inherent in judicial review of legislatively-determined sentence length, and gives courts an active, vigorous role in policing inhumane punishments. It also would end the slow-motion doctrinal train wreck that is the determination of whether a given prison term is quantitatively "too long "--something courts and scholars have proven themselves unable to accomplish coherently. Importantly, this model also fu~nctions as a specific critique of retributive punishment theory. Retributivists often point to the Cruel and Unusual Punishments Clause as mandating retributivism as a side constraint on governmentally-imposed punishment. However, to the extent human dignity is considered to be the primary animatingprinciple behind the Clause, and to the extent that mandatory quantitative proportionality review is undermined on that basis, it becomes far less clear that the Eighth Amendment mandates, or even suggests, punishment consistent with retributivism. * The author currently practices at Latham & Watkins, LLP, in New York. I would like to thank Gregory Acquaviva, Steven Grossman, Cynthia Lee, and Youngjae Lee for their thoughtful comments to previous drafts. I would also like to thank all of those whose insights were shared in more informal conversations, insights which contributed greatly to the ideas expressed in this Article. 72 72 ~OHIOSTATE LA WJOURNAL [o.7:[Vol. 71:1 TABLE OF CONTENTS 1. INTRODUCTION ............................................................... 72 11. THE PROPORTIONALITY "MESS". ......................................... 80 III. CHANGING THE TERMS OF TH4E DEBATE: A NEW MODEL OF PROPORTIONALITY JURISPRUDENCE ................................... 86 A. Qualitative and Quantitative Proportionality................... 87 B. Quantitative Proportionality Is Not Required by the Eighth Amendment........................................................... 88 1. Text of the Cruel and Unusual Punishments Clause......... 89 2. The Argument from Originalism: Early History of the Cruel and Unusual Punishments Clause.............................. 91 I'V. A DIGNITY-BASED APPROACH To EIGHTH AMENDMENT PROPORTIONALITY......................................................... 97 A. Human Dignity Under the Eighth Amendment ................. 98 B. A Dignity-Centered Approach Suggests That Only Qualitative ProportionalityReview Is Required by the Eighth Amendment 105 C. Consequencesfor Reform......................................... 109 V. CONSEQUENCES FOR RETRIB3UTIVE THEORY ......................... 112 VI. CONCLUSION.............................................................. 120 [Ciruelty is a deliberate andfocused attempt to cause pain so that the torturer may receive pleasure in another's suffering. It is tearing off a butterfly's wings and then smiling as the insect squirms on the ground. It is offering cutting remarks and then savoring the attempt to salvage some 1 dignity. It is the most ugly of all vices. I 1. INTRODUCTION I had a client named Richard2 who was convicted of felony drug crime. At the time of his conviction, Richard was in his late thirties. No violence was involved in the incidents leading to his arrest, and Richard had a short and unimpressive criminal history at the time of his conviction. He was sentenced to approximately eight years in prison, spending most of his time 1 Stephen K. George, The Emotional Content of Cruelty: An Analysis of Kate in East of Eden, in THE MORAL PHILOSOPHY OF JOHN STEINBECK 131 (Stephen K. George ed., 2005). 2 For purposes of confidentiality, I have changed the name of my client and omitted certain identifying details. No other details recounted herein have been altered. 20101 2010]CRITIQUE OF RETRIB UTIVISM 773 in high security facilities. Richard served almost all of the eight-year sentence, finally leaving prison when he was in his mid-forties. About halfway through his stay in prison, Richard suffered a severe injury that would eventually require arthroscopic surgery. After almost two and a half years of substandard (and at times nonexistent) care, Richard, acting pro se, initiated an action in federal court alleging that his treating physicians were deliberately indifferent to his medical needs3 and thereby violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.4 The case attracted my attention,5 and I became Richard's pro bono counsel more than a year after his complaint had been filed. Throughout the representation, one thing that struck me was how Richard reflected upon his time served. Over the three years I represented him, I never once heard Richard complain about the length of his incarceration, which to me seemed quite long relative to the severity of his offense and his unremarkable criminal history. I found Richard's sanguinity somewhat surprising, given that at the time of his arrest, Richard had children, decent job prospects, and what appeared to be a vibrant family life. By any measure, a significant portion of the prime of Richard's life was spent behind bars, and yet I never once heard him complain about the length of his sentence. 3 Eighth Amendment liability for substandard medical care is evaluated under a "deliberate indifference" standard, which has two elements: first, that the inmate had an objectively "sufficiently serious" injury, and second, that the defendant knew of and disregarded an excessive risk to his health and safety. This second prong is essentially a recklessness standard. Farmer v. Brennan, 511 U.S. 825, 828, 834, 837 (1994) ("A prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmiate violates the Eighth Amendment. ...[Deliberate indifference is established when] the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."). 4~ U.S. CONsr. amend. V111 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."). 5 What drew me to the case was that Richard had defeated the state's motion to dismiss while acting pro se. As anyone familiar with pro se prisoner suits under 42 U.S.C. § 1983 or Bivens will tell you, many are frivolous, and very few will survive the state's motion to dismiss or, alternatively, the state's Rule 56 motion for summary judgment, which often takes the functional place of a motion to dismiss. See 42 U.S.C. § 1983 (2006); see also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). A complaint that does survive the state's dismissal motion-either because of the strength of the allegations in the complaint, the conscientious efforts of the pro se plaintiff, or both-merits notice, since it is a fairly rare occurrence. 74 74 STATE~OHIO LA WJOURNAL [o.7:[Vol. 71:1 Richard would, however, complain stridently about the conditions under which he served his time. He described a prison world that was overcrowded and often violent-a place where mental relaxation and trust of fellow inmates was nonexistent. He described a medical system that was largely unresponsive to conditions that could not be easily discerned by sight,6 and a system of discipline that was-to his eyes--often arbitrary. It bears noting that Richard served his time in institutions that would not be considered amongst the worst in the nation-not even close. This was a sobering thought.7 While anecdotal reflections are not, of course, necessarily generalizable, Richard's experience does comport with well-known findings on the state of the American prison system.8 What struck me most, though, 6 My review of Richard's medical records confirmed the patent inadequacy of the medical care he received. Conditions like rashes or other outwardly apparent ailments were treated promptly, while injuries or illnesses whose diagnosis would require more than a cursory visual examination went largely untreated. This observation was buttressed by our deposition of the prison doctors named in Richard's complaint; we discovered that "1medical examinations" often consisted of nothing more than a quick look
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