Evolution of Cruel and Unusual Punishment

Great Debates
1

I think you’ll agree that constitutional forms of punishment are significantly less “cruel and unusual” than they once were. Who is driving this progress forward… the people in the form of their legislature or the judiciary.

If the latter, how does a judiciary justify being out in front of the people in terms of progressive rulings like this?

As an example, if confinement in a small cell with bad food and few conveniences, was once an acceptable punishment and the legislature didn’t decide differently, how could a judiciary decide that it is now “cruel and unusual”.

2

IMO, the trend is now in the opposite direction, toward crueller punishment. The “unusual” part depends on how cruelly the average prisoner is punished, so that part is harder to track.

It isn’t hard to find cases of US citizens being seized and “disappeared” for months at a time. They are held in solitary confinement, routinely beaten and sleep-deprived. The Attorney General says it’s all perfectly legal, not cruel nor unusual.

3

The Supreme Court has chosen to interpret the Cruel and Unusual Punishment Clause according to “evolving standards of decency.” So I suppose the differing standards come from court interpretation of the mores of the people.

4

I would read the ‘unusual’ as exactly that.

Society revolves around ‘rules’, and there are rules for punishment of people who break those ‘rules’.

It is a bit like a menu - select a dish and you get what you expect, not the chef’s dish of the day.

Inconsistency really upsets people.

The actual punishment depends on what is prevalent in the society.

5

How does the court determine the current standards… public opinion polls? cocktail party banter?

6

In general, the courts don’t “determine the current standards” at all. If you’ll remember, the constitution requires that a court only act on a real “case or controversy.” So if someone challenges twenty years at hard labor for littering as disproportionate under the Eighth Amendment, the courts look at that one claim, and adjudge whether it is “cruel or unusual” (note that disproportionateness is an element of whether it is “cruel” – the case of the male teen charged with statutory sodomy for giving a younger teen (also male) a blowjob and sentenced to 17 years prison when the maximum sentence for a heterosexual statutory sex crime involving youths of their ages was 15 months, is a pretty typical case of disproportionateness).

As to where they get their ideas from: political columnists, editorial writers, and writers of letters to the editor, have been staples of newspapers since the earliest days of America. Today, blogs, message boards, and other Internet-based publicizing of opinion can be added to that. In the past, the writing and circulation of pamphlets and fliers, the making and posting of posters, etc., were common means of expressing political views publicly.

In an argument for cruelness or disproportionateness, the attorney for the convicted will make a case using such evidence as he cares to present. Testimony on the effects of a given sentence by a penologist, the editorial page of the New York Times, a comment by Molly Ivins or George Will, amicus curiae briefs from “Citizens Against Ridiculous Excess in Sentencing”[CARES]), whatever. The attorney representing the state (usually on the staff of the state attorney general) will counterargue that the sentence is appropriate for the circumstances of the crime and offender.

In arguments relating to unusualness and again disproportionatness, the attorney will display evidence relating to what sentence was imposed in similar offenses elsewhere – as will the state’s attorney, both sides cherry-picking the material that best makes their case.

I get the impression that you feel that judges pull their opinions out of thin air or fundamental areas of their anatomy, What the…!!! – generally they are founded on legal principles, including the fact that words have meanings and that those meanings change slowly but inexorably with time.

If our standards as a people today about what sorts of punishment are cruel and unusual are somewhat different than they were when Lincoln was reading law, that reflects an element of our social contract. Our entry into Iraq in 2003, for example, would have rendered the entire Congress of 1940 or 1950 totally aghast, liberal and conservative alike. Where a law uses words that are not “legal terms of art,” a court is obliged to construe them in the way that the public understands them.

7

" . . . but I know it when I see it!"

8

I’m ok with change and certainly legal principles… my question would be whether the judiciary should be out front and leading the way based on whatever writings (political columns, blogs ??) they might want to hang their hat upon.

9

Whatever happened to breaking rocks?

10

Actually, the most common way in which “cruel and unusual” rears its ugly head is in the area of capital punishment - and in that situation, the courts look most to legislatures.

Specifically, the issue is what classes of persons may be executed - minors, mentally ill/retarded, etc. The Supremes rely heavily upon what the state legislatures have done to determine the “evolving standard of decency”. If a majority of state legislatures have banned the execution of those under sixteen, for example, the Supremes say “hey, standards of decency have evolved. No more executing people under sixteen anyware in the U.S.”

As for your larger question, of whether the judiciary should be out in front, well, at least on this issue, they should be, because that is what the Framers intended. If the Framers simply wanted to ban specific forms of punishment, they could have made up a list and inserted it into the Constitution. Instead, they inserted a nonspecific limitation, and left it up to the courts to decide what should be considered “cruel and unusual”. When the Framers wanted to be specific, they were specific (note the constitutional evidentiary requirements for a treason conviction).

You have to remember that the Framers came out of an English common law tradition. In that tradition, most law was judge-made law. The legislature (Parliament) enacted considerably fewer laws than is the norm today, and those laws were very general; they were often closer to statements of principle than what we would recognize as statutes today. It was expected that the courts would “fill in the interstices”; that is, determine how the general principles set out in the statutes would be applied to the real world.

Sua

11

I didn’t say whether I agree or disagree. But that’s how SCOTUS has looked at 8th Amendment cases.

Though the word “unusual” may be self-defining, the term “cruel” is not. Where do you want the Court to look to define these words, if not to the people?

12

To me, “people” would mean their legislatures. When judgements based on evolving social norms are required it should not be based on the elite’s view of progress.

13

Sometimes the people are so backward that it would be hard for the courts and indeed the legislatures to avoid being ahead of him. If the people truly ruled, in many Congressional districts, prayer in school would be not just permitted but mandatory, and the teaching of Intelligent Design would replace actual science. Hell, I bet you could sell a significant portion of the white American populace on a return to Separate but Equal in education.

Point is, letting the idiot goofs at the back of the class run things is always a bad idea, and that’s what sometimes happens in politics. If you’re intelligent and educated enough to be a judge or often even a legislator, it can be hard to enact some of your more backward constituents’ wishes into law. Perhaps in the spirit of democracy you should do so, and let them suffer the consequences, but sometimes those consequences can be disastrous. Look at the Bush presidency for example.

14

I’m always suspect of claims of what “the People” want. I think a majority view of Dopers would say that the marriage statutes should be amended to permit gay marriage in all places, the DOMA statutes repealed, and that if this is not done, the courts should find the laws barring them in violation of the Fourteenth Amendment.

The majority view in 1930s New York City was that FDR was far too conservative.

The majority view in certain communities in the 1980s was that Ronald Reagan was far too liberal.

The Courts’ obligation is to apply the principles of law to the cases brought before them, including some very broadly written constitutional provisions like the instant Eighth Amendment one. In doing so, they tend to go by the consensus view of a cross-section of Americans as to what non-technical terms mean – neither the people you associate with, nor the ones I do, nor the ones Bricker or Miller do, are a sufficient guide, but rather the views of people in New Hampshire, NYC, Boiling Spring PA, Buckhannon WV, Pickett Co AL, Chanute IL, Alliance NE, Ely NV, Enumclaw WA, Santa Rosalia CA, and Wahiaiwa HI, taken together.

15

You mean those people who gave Bush enough votes in 2000 AND 2004 to steal the Presidency?

I’m just saying, there’s a constant tension between the democratic principle and the fact that the majority of voters are average in intelligence, at best.

16

Would those be the same legislatures that, in the 1950’s (and 60’s!), insisted upon segregating blacks and whites in schools?

In addition to which, I’ll simply point out that, often it is the case that the Supreme Court of the United States, in determining what changes should occur in interpretation of vague phrases over time, will look to what the legislatures of the various states are doing. When some states lag behind others, they may find their orthodoxy is no longer acceptable to the people of the nation, as expressed through their duly appointed judicial representatives (who, by the way, are confirmed by a legislative body elected by the “people”).

17

If its not hard to find, could you cite a few cases then? If its general practice to disappear US citizens and all then I for one would like to see some evidence of this. Routine beatings? Sleep deprivation (again, presumably routine) of US citizens? Lets see some evidence please that this is a wide scale occurance…is ‘routine’. :dubious:

-XT

18

My use of “routinely” referred to the experiences of individuals, not to the overall practices of federal authorities. If a fellow is beaten several times a week, he is being beaten routinely.

If you have picked up a newspaper in the last couple of days, you might have read about Brooklyn, NY born Jose Padilla. His lawyers are saying he is not competent to be tried. They argue that his isolation and interrogation over three and a half years left him too damaged to be able to assist his lawyers in his defense. In previous statements, Padilla claimed he was beaten, tortured, and given hallucinogenic drugs.

Now, was that so hard?