The 8th Amendment of United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” There is no argument that “shall not be” applies to all three clauses. If only we could be so clear about what punishments approach or exceed this standard. In 1962, Robinson v. California, 370 U.S. 660, SCOTUS extended the 8th Amendment to the States through the 14th Amendment’s Due Process Clause.
In addition, SCOTUS has also provided some clarification to the standard by adding four principles to determine whether a particular punishment is cruel and unusual, Furman v. Georgia, 408 U.S. 238 (1972):
- The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture.
- “A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
- “A severe punishment that is clearly and totally rejected throughout society.”
- “A severe punishment that is patently unnecessary.”
So there you have it, aside from grotesque mutilations and a slow death, we currently have a perfectly ambiguous and subjective standard that continues to be abused by the U.S. Government. First, I am motivated to address this issue after reading this morning about P.F.C. Bradley Manning, and his 1,000 days of military detention, for much of the time in brutal conditions.
Bradley Manning’s 1,000th Day in Jail – The Guardian UK. Second, I am sickened anytime I read anything about an American super-max prison, and felt it was time to put my thoughts to writing. Finally, I would be remiss if I failed to include the extraordinary rendition and enhanced interrogation techniques of the George W. Bush administration.
In summary, in super-max prisons (44 State / 1 Federal) prisoners are held in solitary confinement indefinitely for 23 hours a day, with almost zero human communication or contact. An extraordinary rendition is essentially a secret and extra-judicial kidnapping where the accused (or should I say victim) is secretly transported to a foreign country. And we are all now familiar with enhanced interrogation techniques in various forms, but most notably water-boarding.
Growing up in the United States, for the first twelve years of my public education, the first thing we did every morning was recite the Pledge of Allegiance. At every sporting event, from Little League to the Superbowl, we always begin with a singing of the National Anthem. Together with the The Declaration of Independence and The Constitution of The United States, we have some of the most significant and memorable language burnt into our memory from a very young age. Some of the more memorable language that sticks with me:
- The land of the free
- Home of the brave
- One nation under god
- Liberty and justice for all
- A country that holds these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness
- We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
SOURCE: Criminal Justice Program
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