Is it fair to say that one of the central issues in this thread is Scalia’s contention that when torture is used as an interrogation tool, is is not punishment and therefore the 8th Amendment does not apply ?
If this is the case, then could you reconcile your quoting of a poster who says:
That is, if it’s punishment as far as the 5th and the 14th are concerned, why is it not punishment as far as the 8th?
Since the 5th and the 14th lack any modifiers (e.g., cruel or unusual), do they proscribe any mistreatment? How would a strict originalist/constructionist/whatever construe the Amendments to bar clear cases of torture (e.g., electrodes to the testicles) from mere discomfiture (i.e., a chilly holding cell)?
I would imagine that if used for interrogation it would run afoul of 4th Amendment proscriptions against unreasonable searches, but what if they were torturing A to get evidence against B (by not using the evidence against A, A has no standing to move for the suppression of the evidence).
Of course. Certainly I wouldn’t argue the Eighth Amendment in this case, even as part of a “kitchen sink” approach, because it would be a laughable argument not remotely applicable.
The Fifth and Fourteenth Amendments would be in play; there’s plenty of case law that defines pre-trial detainees’ rights under the Fourteenth’s Due Process Clause. We learn this from Bell v. Wolfish, a 1979 case challenging pre-trial detainees’ conditions.
Tasering a detainee for practice is not reasonably related to a legitimate governmental objective, and is fairly described as both arbitrary and purposeless.
The factors used to weigh if a pre-trial sanction is “punishment” within the meaning of the Due Process Clause jurisprudence:
So – the federal constitutional argument in the case of Rhythmdvl tasing rests squarely on the Due Process Clause.
Because the Eighth has always, since its inception, be understood to apply to post-trial, post-conviction punishment. Because the PHRASE has a meaning and a context in law, and did at the time. Because every single case that’s dealt with the Eighth Amendment’s cruel and unusual punishment clause in the history of the nation has affirmed that distinction. And because the Fifth and Fourteenth Amendments have been construed to address pre-trial conditions.
And because there is value to having different standards. As we learn from the cases I quote above, "A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a ‘judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.’ . . . Under such circumstances, the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution. "
See that? The Government can’t punish AT ALL. Period. The guy isn’t guilty. He can’t be punished, period. This is the Due Process of law guarantee of the Fifth and Fourteenth Amendments.
Now he’s been to trial, found guilty, convicted. NOW he can be punished, but not in a way that is “cruel and unusual.” That is where the Eighth Amendment comes in.
May I assume, from the lack of further posts, that everyone now understands that the Eighth Amendment does not apply outside the context of post-conviction sanctions?
So you contend there’s some “higher truth” to your interpretation of the Constitution, such that even though no court has yet seen it, it’s still true?
No. Actually, it’s MY interpretation of the Constitution that’s the singularly correct one, and all of you must bow before it!!
Or… we could acknowledge that since neither of us can credibly and effectively assert our sole dominance of the issue, perhaps we should agree on some acceptable system, wherein we shall both accept the judgment of some third party as binding as to the meaning of the Constitution?
Doesn’t the inclusion of the disclaimer hurt your argument?
As I see it, Scalia (and you?) are arguing that pre-conviction treatment is, by definition, not punishment. Accurate?
But the mere presence of the no-punishment remark implies that it is theoretically possible for pre-conviction treatment to constitute punishment, and hence the need of the clause to admonish against such treatment.
Hmmmm… How about you just concede his point, then? Because the “after conviction” rubric was not brought down from the mountaintop where it was proclaimed as eternal law by the great god Stare Decisis – it is the product of people examining what that near-universally agree on group, SCOTUS , has had to say so far.
If five of those people get together on an opinion that says that "the Federal government may not use land leased from another country for the purpose of holding political prisoners without trial and systematically torturing them, and that esides the guarantee of Habeas Corpus and the provisions of the Due Process Clauses, the Crluel and Unusual Punishment Clause prohibits torture before trial and conviction as well as after, then your standard would change – because that agreed-upon body has revised the standard.
But assumping that a textualist approach would equate “punishment” to “sentence after conviction” because that’s the way it’s been read to date is, uh, reading something into the text that isn’t overtly stated, you know, one of those emanations or penumbras you keep alleging are being found by people who claim that Equal Protection really does mean Equal Protection, and other unenumerated rights really does mean other unenumerated rights, not "equal protection unless a legislature can meet our particular standard for alllowing this kind of inequity, and not “and such other unenumerated rights as an omnipotent and beneficient legislature shall from time to time see fit to spell out.” You can tell those emanations not from their penumbras but from their fetid miasmas.
We have never said it is impossible to engage in action prior to conviction that would fall within the purview “punishment.” Suppose, for example, that there was a requirement by the judicial system that every person arrested be personally presented before a judge, who then forces them to undergo five lashes for the simple fact of the arrest, without any determination of guilt. They are then sent back to jail to await trial. I think we could agree that this would be “punishment.”
But fortunately for us, we don’t have to worry about resorting to the Eighth Amendment here. If we did, then the judge might not be able to whip us, but suppose instead that the had us hold out our right hand and then he personally administered five sharp slaps on our wrist with a wooden ruler, videotapes the whole procedure, and has it brodcast on the local access channel. This would hardly be “cruel and unusual” punishment. But the whole thing is quite unconstitutional, thanks to the Fifth and Fourteenth Amendments, which preclude ANY type of pre-conviction punishment.
This is why it is so silly that everyone here has been raging about what Justice Scalia said. To assert that the Eighth Amendment doesn’t cover the administration of torture does not create any unhappy result at all, because certainly the Fifth and Fourteenth Amendments do, and if you don’t fall under THEIR scope, what hope have you of being considered covered by the Eight Amendment???
How about if it weren’t a requirement and depended on the inclinations of the judge?
BTW, this is Scalia’s position:
So, if the torturer doesn’t genuinely believe in the efficacy of torture or if the interrogation is a pretext, then it does become punishment?
IOW, it boils down to that those who think torture can work, ought to regard it primarily as a non-punishing act; whereas, those who think it doesn’t, ought to regard it as punishment. And for the latter group, the 8th amendment should cover it as well as the 5th.
P.S. in reply to Scalia’s rhetorical question: “What’s he punishing you for?” A: for refusing to part with the information that he thinks you have. And the aim of the punishment being to deter you from keeping silent in anticipation of further torture.
The unpersuasive parts. I agree with elucidator; it is inconceivable that the founding fathers intended to protect the convicted from torture, but not the accused. Your arguments are simply unpersuasive.
Go back to my “bay” example (which I shamelessly lifted from Scalia’s book). Deciding that “bay” means a body of water and not a safe distance or a type of horse when I say that I live “by the bay” is not resorting to a penumbra. It’s using the ordinary, reasonable context of the writing. When the words “cruel and unusual punishment” were penned, they had an obvious and unremarkable context – it took no leaps away from the text to understand their contextual meaning.
This is in contrast to the rights that truly are grounded in penumbras and emanations – you may argue they’re wise and good to have; you cannot argue they are clear, obvious, and unremarkable in context --if for no other reason than it took a later court to “discover” them. If it’s so utterly clear and unremarkable that the Constitution forbids a states from outlawing sodomy between consenting adults, why did this become obvious only in 2003? Why did a majority of the court only 20 years previously conclude the precise opposite? No, no – right, wrong, or indifferent, you certainly can’t claim that these kinds of ‘rights’ are obvious and unremarkable.
In contrast, the idea that cruel and unusual punishment is a phrase meant to apply only to punishment after conviction, we have every single case the court has considered on those grounds throughout its years, as well as the contemporary writings of those that adopted the language.
Could it be that you truly can’t see the meaningful distinction between these cases? That would certainly explain your sneering at those who would reject the “penumbras” but support Eighth Amendment jurisprudence.
Whether torture works or not, it is not “punishment” as that word was used in the Eighth Amendment. Torture is the application of pain or threat of loss of life or limb to coerce your will upon a person. That’s not the same thing as judicial punishment.
And you STILL aren’t dealing with the fundamental fact that these words have had a definite meaning in this regard for over 300 years. AND, it isn’t NECESSARY to cover the situation with the Eighth Amendment because if the EIGHTH amendment applies, the FIFTH Amendment freaking does too!!! When will everyone get that through their heads??? :eek:
Sorry, it’s early. :o
Oh, and later today I think I’ll start a new thread to cover the now fully-engaged debate about how to interpret the Constitution, which has resulted in a couple of side-bar conversations threatening to take the thread over.
The Constitution’s Fifth Amendment DOES protect accused people from torture. Didn’t you read my response to Rhythmdvl? Doesn’t it lay out precisely how the Constitution protects the accused from torture?
But you yourself presented an illustration where pain is inflicted upon a non-convicted person in the form of lashes and called it ‘punishment’. Is that scenario covered by the 8th?
Bricker, are you saying that DSYoungEsq’s illustration may be punishment but is not covered by the 8th --or-- not punishment and hence not covered by the 8th?
