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Cruel and Unusual Punishment: A Right
Open to Interpretation The American justice system has failed to uphold the Eighth Amendment. Because of a recent execution, in which it took much longer than usual for the inmate to die, as of February 2007, eleven states have halted lethal injections, citing cruel and unusual punishment. Although, the death penalty most often comes to mind, there are many facets to the concept of cruel and unusual. 1991 in Harmelin v. Michigan, the Supreme Court "rejected as cruel and unusual a mandatory term of life in prison without possibility of parole for possessing more than 650 grams of cocaine" (United States). California's three-strikes law is also being called into question on grounds of overly excessive sentences being cruel. And in New Mexico charges have been filed against a jail guard for sexual abuse and cruel and unusual punishment against two female inmates. At the dawn of the 21st Century, crimes and tools of punishment have altered considerably, yet what constitutes cruel and unusual is still open to interpretation and debate today. Many people say today's penalties are not cruel and unusual compared to the humiliating and tortuous punishments the Framers were seeking to change. But, can contemporary corrections be legitimately compared with those of 231 years ago? Prison, being the main form of today's punishment, impresses many as being relatively mild compared to the devices the colonist's used. Humiliation being a large part of the punishment, the sentences were carried out in public. According to the Colonial Williamsburg Journal: Each village had their own devices, early on they used bilboes, imported from England, long iron bars with shackles and padlocks. When these began to wear out the colonist's began making wooden stocks themselves to replace them. Similar to stocks but suspended upon a post was the pillory, a hinged board with holes for the head and hands from which the offender hang. Sometimes the ears were nailed to the wood as well. (Cox) Devices such as the bilboes, stocks and pillory held the culprits open to public mockery and abuse. These were perhaps the mildest forms, but others in contrast were quite vicious. "The ducking stool, a chair on a plank, capable of holding one or two, swung out over, and dunked into the water. Extremely sadistic was the gossip's bridle, an iron cage made to fit over the head, with an iron tongue that had a spike in it sometimes." Can the deprivation of personal freedom, however extensive, be compared to physical torture and public humiliation? Also among the favorites were whipping posts, ear cropping, and branding. These are a sample of the cruel and unusual punishments the Founding Father's were seeking to abolish. To Edmund Pendleton, 1776, Thomas Jefferson wrote: It is only the sanguinary hue of our penal laws which I meant to object to. Punishments I know are necessary, & I would provide them, strict & inflexible, but proportioned to the crime. Death might be inflicted for murther & perhaps for treason if you would take out of the description of treason all crimes which are not such in their nature. Rape, buggery &c -- punish by castration. All other crimes by working on high roads, rivers, gallies &c. a certain time proportioned to the offence. But as this would be no punishment or change of condition to slaves (me miserum!) let them be sent to other countries. By these means we should be freed from the wickedness of the latter, & the former would be living monuments of public vengeance. Laws thus proportionate & mild should never be dispensed with. Let mercy be the character of the lawgiver, but let the judge be a mere machine. Unfortunately 231 years of experience and evolvement have not eliminated the need for the Eighth Amendment. There are issues today the Framers could never have thought of, technology, drugs, mass murder on the scale of September 11, 2001, and women's struggle for equality, which have led to new realms of interpretation. The American Civil Liberties Union, considered the watchdog of the American citizen’s civil rights and liberties, has taken on a case in Albuquerque, New Mexico, claiming cruel and unusual punishment. Two female inmates alleged, in 2003, a detention officer sexually assaulted and took photographs of them in the nude. The lawsuit filed on behalf of the two women claims severe physical injury as well as emotional and psychological distress. Executive Director of the ACLU of New Mexico, Peter Simonson stated, If proper safeguards had been in place, these assaults might never have occurred. Jails aren't supposed to be pleasant places. However, prisoners are entitled to basic rights, and protection against predatory guards certainly is one of them." (American Civil Liberties Union) Although the cruel and unusual in this case refers to abuse inflicted by a correctional officer upon the inmates, instead of the penal sentence, makes it no less subjugated to the Eighth Amendment. The goal of the modern penal system being reform, not correction, cannot be achieved without humane treatment of prisoners. Disproportionate sentences are also being called into question by many, for example, is shoplifting a life sentence offense? The United States Supreme Court has contended for nearly a century that excessive sentences comprise cruel and unusual punishment as denoted in the Eighth Amendment. Nevertheless, twenty-six states have implemented the "three strikes and you're out" law. Of these, California is the toughest. The felony does not need to be violent or serious, so simply shoplifting can result in a life sentence. In 2003, the Supreme Court ruled no constitutional error in sentencing twenty-five years to life in Ewing v. California, (123 S.Ct 1179). The defendent was convicted for stealing three golf clubs valued at $1200; however, this was his third felony (Bowman). Criminals must suffer the consequences of their crimes, but is sentencing them to twenty-five years to life for shoplifting any less barbaric than a public whipping? Although the penal system has switched from public humiliation and torture to incarceration, one facet of the pre-revolution colonial times continues to draw opposition and debate, capital punishment. Almost two hundred years after the ratification of the Constitution, in 1972 the Supreme Court ruled : Furman v. Georgia (408 U.S. 238), Georgia's death penalty statutes, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held this cruel and unusual. On 29 June , 1972 the Supreme Court voided forty death penalty statutes, this commuted 629 death sentences across the country. This ruling effectively suspended the death penalty by rendering these statutes unvalid. New statutes were written and in 1977 the Court approved them in Gregg v. Georgia, (428 U.S. 153), ruling the death penalty constitutional under the Eighth Amendment. (Death Penalty Information Center) In 1977 after a ten year interim the death penalty was reinstated. Gary Gilmore, after spending the greatest portion of his life since adolescences, sentenced to death in Utah, for killing two men while committing armed robberies, was the first person to be executed. Gilmore refused all appeals and fought to be executed, by his own choice, he was executed by firing squad. Currently lethal injection, thought to be more humane, is the method of choice. However, some states are questioning this method. Since December 2006 eleven states have halted their executions, due to an incident in Florida. Inmate Angel Diaz required two injections and lived for thirty-four minutes after the first injection (Tisch and Krueger). Not only the method of injection is being questioned, but capital punishment itself. Can this debate be resolved? Some, including convicts, say life in prison is preferable to death, while others would rather die than be locked up the rest of their lives. Cruel and unusual, as beauty, lies with the beholder. It is a new century, crime has become more complex, and the implements of torture have given way to incarceration and lethal injection; however, the concept of cruel and unusual still has no definitive interpretation. During congressional deliberation of the Bill of Rights, Founding Father and U.S. Senator from New Hampshire, Samuel Livermore observed: No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind. (The Founders Constitution) As long as mankind continues to exist, it is most likely crime will exist. And where there is crime, there must be punishment. Perhaps one day society can achieve the right and humane balance between punishment and reformation. Until then, we must continue to question and contest any perceived injustice we may happen upon in our criminal justice system. Works Cited American Civil Liberties Union. “ACLU of New Mexico Files Lawsuit Over Jail Guard's Sexual Abuse of Female Prisoners.” Prisoners' Rights: Women in Prison. 25 Jan. 2006. 5 Apr. 2007 <http://www.aclu.org/prison/women/23942prs20060125.html>. Bowman, Frank O. III. "Ewing v. California: The Supreme Court Takes a Walk on "Three Strikes" Laws...And That's Fine." Jurist Legal Intelligence. 24 Mar. 2003. 15 Apr. 2007 <http://jurist.law.pitt.edu/forum/forumnew103.php>. Cox, James A. "Bilboes, Brands, and Branks: Colonial Crimes and Punishments." Colonial Williamsburg Journal. Spring 2003. 6 Apr. 2007 <http://www.history.org>.
Death Penalty Information Center. Part
I: History of the Death Penalty.
Jefferson, Thomas. "The Virginia
Constitution (Edmund Pendleton)." Jefferson, Thomas, 1743-1826.
Letters. Jefferson Digital Library. University of Virginia Library. 6
Apr. 2007 Kurland, Philip B., eds., et al. The Founders' Constitution. Volume 5, Amendment VIII, Document 14. 14 Apr. 2007 <http://www.history.org/Foundation/journal/spring03/branks.cfm>. Tisch, Chris, and Curtis Krueger. "Executed Man Takes 34 Minutes to Die." St. Petersburg Times. 13 Dec. 2006. 5 Apr. 2007 <http://www.sptimes.com>. United States. Supreme Court Center. Harmelin v. Michigan, 501 U.S. 957 (1991). 6 Apr. 2007 <http://supreme.justia.com/us/501/957/index.html>. |
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