As we continue in this irregular series of pieces on the Bill of Rights, we inevitably come upon the Eighth Amendment, the "cruel and unusual punishment" one. Oh, yeah, that one. Goes pretty much like this:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Pretty straightforward, right? Well, we are actually asking ourselves in this series what might be the obligations of a free society living under those rights, and the Government's obligations in working under them. What are the consequences of such a rule?
Let's face it, the excessive-bail-and-fines clause is pretty dull; all the courts have to do in dealing with any cases is to determine what "excessive" means. We have obviously allowed the right for courts to deny bail (the logical extrapolation of the proscription of "excessive"), so as long as the courts -- and the Eighth Amendment is not confined to Federal courts -- prescribe bail and assess fines in keeping with contemporary standards for the offense.
The meat of the Amendment, of course, is that courts -- and it is assumed to be courts because of the word "bail", but fines can be levied, or "inflicted", by other agencies as well -- may not inflict punishment which is cruel and unusual.
Cruel and unusual, not "or".
Can we not agree that in order to be found unconstitutional, a specific punishment needs to be determined to be both cruel and unusual? Courts have certainly addressed this point; it took the Furman and then the Gregg cases in Georgia to combine to determine even that capital punishment, properly sentenced, could be reinstated in the 1970s after having been suspended for a while.
Whatever the Supreme Court's deliberation at the time, there is certainly no question that capital punishment is not "unusual"; it goes back to Biblical times, has existed ever since (including the first 200 years of the USA) and is in use in various lands around the world. ISIS may be giving it a bad name, but of course they give everything, including Islam, a bad name. At least here you have to kill someone to get executed, not be a Christian -- or the wrong flavor of Muslim.
So what is "unusual"? Never used before? Only used by uncivilized heathens? Sheriff Arpaio, out in Maricopa County, Arizona, has come up with some awfully unusual treatments of people held in custody and runs an interesting jail -- and still does. Is any of that also "cruel"? Relative to normal prison conditions, those inmates probably have some things better, and still likely come out less likely to want to go back there than those in jails in, say, Baltimore.
"Cruel", on the other hand, is so very subjective, and why I suspect the Framers put the two together in the same phrase. Execution is about as cruel as it gets short of torture, but certainly wasn't intended to be excluded by that Amendment originally.
And so here is the obligation, the risk, the consequence that the Eighth Amendment visits on us. We must be careful, vigilant even, to ensure that a proper balance is applied between the safety and protection of the law-abiding citizen, and the contemporary values and standards about what constitutes "cruelty."
By that, I mean that if we continue with this incredible and horrifying path we're marching on, to where everyone is a victim, then we risk continuing to redefine cruelty as anything that offends. Anything that could be seen as exacerbating the victimhood of, well, anyone, since we're all victims, can be seen as cruelty.
Well, the Bill of Rights ought not to be so subject to the application of passing contemporary standards. We must be vigilant when we risk having legislation or court decisions sneak in during those periods of stupidity which we have to live with (like now), until repeal. I would like to think that we can look in our hearts and readily distinguish cruelty from punishment. I know that I can, and I'm not even a lawyer.
And oh yes, it has to be unusual as well. Both. Dang those liberals.
Copyright 2015 by Robert Sutton
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