THE UNITED STATES Constitution recognizes the right of each state to legislate its own punishments. It is generally considered that this right could only be abrogated if it could be proved that a particular punishment was cruel and unusual-which would be a violation of the 8th Amendment to the Constitution which guarantees protection against cruel and unusual punishment.
Therefore, we should expect that judges and legislatures could administer all kinds of qualitative punishments provided that they could not be shown to be cruel and unusual. In this chapter we will survey some of the punishments and punishment practices that the U.S. Supreme Court has tested for their constitutionality.
In doing so, we will see that the court is hesitant about classifying any punishment as cruel and unusual mainly because it tries not to interfere with the rights of the states to enact their own laws.
The classic case on corporal punishment decided by the Supreme Court is that of Weems v. U.S.
On May 2, 1910 the United States Supreme Court considered the case of the unfortunate Mr. Weems who had been convicted of falsifying official records of the United States Coastguard which resulted in the government being defrauded of the total of 612 pesos (the crime occurred in the Philippines).
The Philippine Criminal Code mandated 15 years in prison with hard labor for this offense, plus the added punishment of cadena temporal which required him to be constantly in chains. In addition, he lost all political rights during imprisonment, was subject to permanent surveillance after his release, and was fined 4,000 pesetas.
This bizarre case became a landmark of all subsequent cases dealing with cruel and unusual punishment.
The Philippine Constitution has in it the same clause about cruel and unusual punishment as does the 8th Amendment to the U. S. Constitution which was adopted in 1791:
That excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Luckily for Mr. Weems, the Supreme Court struck down the sentence as cruel and unusual. However, the reasons it gave for this decision have been the subject of debate until this day. It is popularly assumed that, because of the Weems decision in which cadena temporal was defined as corporal punishment, if a state were to enact a corporal punishment statute, this would be found unconstitutional. But this is far from certain.(1)
There are a number of reasons for this. Some turn on the ambiguity and disagreement concerning the actual meaning of the phrase "cruel and unusual." Others turn on the court's failure to comprehend punishments in anything other than a quantitative sense. Let us first look at the various interpretations of "cruel and unusual. "
The legislative intent of the 8th Amendment of the Constitution is open to much debate. A number of legal scholars and historians argue that it is a fallacy to believe that the phrase "cruel and unusual," lifted from the English Bill of Rights of 1689, was included in that Bill of Rights specifically to exclude barbarous bodily punishments.(2) It is quite certain that this could not have been the intent of the framers of the English Bill of Rights, since barbarous punishments were used for at least another hundred years after 1689. What is clear is that their intent was to forbid the abuse of governmental power. This was the preoccupation of the English in the 17th century. As such, the phrase could apply to any kind of punishment at all, and the phrase "cruel and unusual" may be taken to mean something closer to "arbitrary and capricious" (more akin to the 14th Amendment guarantee of due process).
It is true that the court in Weems did consider the interpretation of abuse of governmental power as a factor in the intent of the framers of the English Bill of Rights. But the Court seemed to find it necessary to go further in justifying its decision, especially that part of it that focused on proportionality: that is, the idea that 15 years prison was too much compared to the seriousness of the offense.
This point in Weems opened up a veritable can of worms. It opened the way for subsequent appeals against excessive prison terms for seemingly minor crimes such as that of Mr. Rummel, reported in Chapter 1, who received a life sentence for stealing a total of $229. 11.
Yet, since Weems, the Supreme Court has never ruled any prison term as excessive. So it would appear that while it introduced the notion of proportionality itself, it has never taken the rule very seriously and therefore the only way to explain its decision is to conclude that it was the "extras" of cadena (the corporal punishment) that were enough to make the Philippine law cruel and unusual.
Why did the Court make trouble for itself by addressing the proportionality question in Weems? The reason is that it was preoccupied with prison as a punishment, and as such it is a punishment essentially measured in amounts, and it is the amount of punishment that has to do with proportions, not the type of punishment.(3)
Here again, the court was way off base. The framers of the English Bill of Rights could not have had proportionality in mind, because there was no conception of the numerical base of punishment until the utilitarians such as Beccaria and Bentham introduced it in the 18th century. Before that time, one was not sentenced to a certain number of lashes, but merely to be whipped. Before the utilitarians, the reflective view of punishment held sway. That is, the concern was for the appropriateness of the punishment to the crime, not its proportionality. That is to say, quality of punishment, not quantity.
However, by the time the Americans came to frame their Constitution, the utilitarians had reached the height of their ideological power and there is good reason to believe that Beccaria's thought had penetrated the minds of the framers of the American Constitution. So the chances are that they believed "cruel and unusual" included the notion of proportionality.(4) In this sense, the Court of Weems may have been on solid ground.
This historical point raises a significant issue: it means that phrases of the Constitution, especially this phrase, should be interpreted according to current standards, not those of the past. That it may not be much use trying to second guess the intentions of the framers of the Constitution, but rather we should interpret "cruel and unusual" according to modern standards of decency. This also was a point recognized and stated in Weems, and in many other cases since.
In any case, even recognizing the errors in interpretation of the framers of the Constitution, most decisions on cruel and unusual punishment have pretty much assumed that the 8th Amendment 44 expresses the revulsion of civilized man against barbarous acts-the 'cry of horror' against man's inhumanity to his fellow man" (Robinson v. California, Mr. Justice Douglas concurring).(5) Other interpretations have made similar pronouncements referring to the "traditional humanity of modern Anglo-American law."
Clearly, this "humanity" is assumed, or defined, merely in terms of the absence of corporal punishment, since the court has consistently failed to rule as cruel and unusual a number of prison terms that were clearly out of proportion and excessive by anyone's standards (except the court's!). The prime example is that of Mr. Rummel already described. But there are others:
In 1912, the Supreme Court held that a life term of imprisonment for Mr. Graham, an incorrigible house thief, did not violate the cruel and unusual prohibition. Graham was sentenced under the West Virginia recidivist statute which mandated life imprisonment for a third felony conviction. The total stolen was $ 31O.(6)
**
Charles Mosley pleaded guilty to the charge of criminal sale of a controlled substance. The New York 1973 drug law required: a mandatory maximum term of life imprisonment, a minimum of one to eight and a third years, no possibility of probation, lifetime parole, no possibility of civil commitment to Drug Abuse Control Commission, no possibility of having a charge reduced by plea bargaining and no possibility of youthful offender treatment. Mosley charged that this law violated the state and federal prohibitions against cruel and unusual punishment. The Monro County Court at first granted his motion, but in People v. Mosley, decided in 1975 in the Supreme Court of New York, the decision was overturned and it was decided that the law did not violate the cruel and unusual phrase of the New York and U. S. Constitutions.(7)
How does one explain the constitutionality of these punishments that are excessive by common sense standards? And this especially when one of the standards applied by the courts has been that of (X) society's evolving standards of decency?" Have we decided that it is decent to lock someone up for life for having stolen a mere $229.11 ?
Not only does the Supreme Court consistently refuse to overturn excessive prison sentences, it also refuses to rule on the question of whether particular conditions in prisons violate the cruel and unusual clause. For example, in 1979 the Court overturned a lower federal court decision that found that numerous practices and conditions in a New York City detention center were cruel and unusual. These conditions included: the inmates were unconvicted defendants awaiting trial, they were subject to unannounced searches, strip searches were conducted of friends and family, and Christmas packages were refused.(8)
A similar decision was made by the court in June, 1981, when it rejected the opinion of a federal district court that double ceiling in an Ohio state prison in cells designed for one constituted cruel and unusual punishment.
The majority of the Supreme Court Justices concluded that:
... the constitution does not mandate comfortable prisons, and prisons of (this) type which house persons convicted of serious crimes, cannot be free of discomfort.(9)
The Court has also refused to rule that brutality and violence in prisons constitute cruel and unusual punishment.
In Ingraham v. Wright(10), the Court noted that although prison brutality is part of the total punishment which an individual is subjected to for his crime and, as such, is a proper subject for 8th Amendment scrutiny, nevertheless, the protection afforded by the 8th Amendment is limited after incarceration; only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment.
One can only agree with the Court, especially after our discussion of the retributive role of prisons as punishment, that there is no compelling reason to make them comfortable. But the clear irony of the Court's position is that it seems to affirm the infliction of harsh conditions, especially violence, upon the inmates largely because they are by-products of prison itself, whereas if we specifically chose to apply a violent or harsh punishment on a criminal, then this would be unconstitutional, because it would be an act of "barbarous punishment."
James Earl Ray was stabbed twenty times in prison. Many younger offenders are brutally raped. Does the Court mean that this kind of punishment is okay, but that the infliction of acute pain by corporal punishment is worse than this?
Is not the brutality of neglect just as barbaric as brutality with a purpose?
We see the severe shortcomings of the Court's thinking about punishment:
1.It displays a lack of punitive purpose, a purpose which should clearly be to inflict pain.
2.It has a one-track conception of severe punishment as prison, with the result that it has made decisions biased in its favor, affirming both our neglect of prisons and their excessive use.
3.It has failed to conceive of the qualitative possibilities of punishment.
The Court's failure to perceive the variety of possible punishments is well demonstrated in its assumption that all corporal punishments are the same, and that they are all synonymous with torture. We see this thinking clearly expressed in the case of Jackson v. Bishop, decided December 9, 1968. (11)
The case concerns an injunction brought against the superintendent of the Arkansas State Penitentiary, 0. F. Bishop, to cease using the strap against prisoners for disciplinary purposes. The Court of Appeals held, among other things, that any use of the strap (even when due process of the 14th Amendment was demonstrated) violated the 8th Amendment of the Constitution which prohibits cruel and unusual punishment, simply because it was cruel. A final observation made by Justice Blackman seemingly extended this decision to sentences of corporal punishment as well as to its use in prisons:
Neither do we wish to draw, in this context, any meaningful distinction between punishment by way of sentence statutorily prescribed and punishment imposed for prison disciplinary purposes. It seems to us that the 8th Amendment's proscription has applicability to both.
The Court ordered the Superintendent of the Arkansas State Penitentiary to cease use of the strap.
The Court's extension of this decision to corporal punishment as a sentence is indefensible for two reasons:
1.The Court itself, in arguing the same case actually recognized that "there is authority, some of it recent, with seemingly contrary indications. Certain of these cases rest of the presence of specific statutory provisions for corporal punishment for crime." In other words, the principle governing the right of States to establish their own laws and punishments has been upheld and certainly this has been the main reason why the Supreme Court has been reluctant to find the excessive prison terms in cases described earlier to be cruel and unusual: it did not (could not?) interfere in the States' rights to legislate their own crimes and punishments.
2.The Court reviewed a lot of evidence against the use of corporal punishment, but none, it would seem, in favor of it. It refers to two "expert penologists" whose testimony "clearly demonstrated" that the use of the strap "in this day is unusual and we encounter no difficulty in finding that its use is cruel."
Yet the arguments that were trotted out against corporal punishment were virtually the same ones used in the British Home Office Study of 1938, and that by Caldwell in the 1940's, the many biases of which are described in Part Two of this book:
1. "Whipping creates penological problems and makes adjustment to society more difficult." There is absolutely no evidence to support this claim. Indeed, compared to prison, the difficulties of societal adjustment and penological problems created by corporal punishment pale into insignificance.
2. "Corporal punishment generates hate toward the keepers who punish and toward the system that permits it." Administered within a prison setting, no doubt this has occurred. But is it not the prison setting itself that generates the hatred, rather than corporal punishment?
3."It (corporal punishment) is degrading to the punished and to the punisher alike." There is no evidence to support this view, especially concerning the punished. In fact, the British Home Office Study found that, if anything, it added to the pride of the prisoners who could demonstrate their manliness at being able to "take it."
4."Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous." So is any other punishment. As a sentence, however, it cannot be abused in this way. The British Home Office study candidly noted that there was no evidence of excessive use of the birch or lash when used as a sentence.
5."There can be no argument that excessive whipping or an inappropriate number of whippings or too great frequency of whipping or the use of studded or over long straps all constitute cruel and unusual punishment. But if whipping were to be authorized, how does one (or any court) ascertain the point which would distinguish the permissible from that which is cruel and unusual?" Agreed, this is a problem. But it applies to prison even more so, does it not? And although the Supreme Court has recognized the difficulty in drawing the line between what is and is not an excessive prison term, it nevertheless has not been a problem of sufficient magnitude to justify finding prison per se cruel and unusual. Therefore, why apply this rule only to corporal punishments?
6. "Public opinion is obviously adverse." The court cites as evidence for this assertion the fact that only two states still permit the use of the strap and that a few states have expressly outlawed it. But if a Gallup Poll were conducted tomorrow we would likely find considerable support for corporal punishment. The majority of people favor it in schools and at home in disciplining their children. So if it's okay for children, why not for criminals?(12)
To get a clearer idea of the potential legality of corporal punishment and how it compares to prison, let us look briefly at the main rules that various courts have used in deciding whether a particular punishment was cruel and unusual. These rules have mostly been derived from those stated in Weems, although a few recent decisions have tended to "modernize" them, adding a couple of new standards. This applies especially to the California Courts.
1.The punishment must not be disproportionate to the crime. By this the courts have meant three things:
a.It must not be out of proportion to the particular crime. Since life terms have been held as okay for seemingly insignificant crimes, we must conclude that the Supreme Court does not see this rule as being very important. It has, however, ruled that the kind of punishment may be excessive to the crime, as it did in Coker(13) where it ruled that the death penalty was excessive for the crime of rape. If this is so, one may ask whether corporal punishment of a moderate amount would be deemed excessive for the crime of rape?
b.It must not be excessive in and of itself. Since the Supreme Court has held that the death penalty, which is the ultimate in corporal punishment, is not cruel and unusual when administered by states which ensure its use by due process, it is hard to see how corporal punishment of a lesser amount would be cruel and unusual, provided it were administered fairly and not in excess of the crime. The Court's decision in Bishop was not justified. In fact, its decision amounts to a mere assertion that corporal punishment is "cruel." How can it find corporal punishment as cruel but not the death penalty?
c.A punishment is considered excessive if it serves no penal purpose. In the light of the vast amount of research on prisons concerning their (lack of) deterrent effects, it would appear that they perform no penal purpose beyond incapacitation, or at least their current purpose is much obscured. What is the penal purpose of corporal punishment? The essential purpose is clearly to inflict pain on the offender in retribution for his offense. This is the primary and just purpose of all criminal punishment, and acute corporal punishment can achieve this far better for many crimes and offenders. Its penal purpose is clear and unequivocal. This certainly cannot be said of prison today, where it isn't even clear anymore whether offenders are being treated or punished.
2.The punishment must not allow for the unrestrained use of power. In Bishop, the court painted a grim picture of the punisher standing over the punished, punishing to excess, often for minor infractions. It also noted that there was no way to prevent the unrestrained use of the strap in such a setting, and indeed, when the prison system had introduced rules for its application, they were often broken. Thus, corporal punishment, the court concluded, was too open to abuse of power.
But the Court had it around the wrong way: because of its (necessarily) totalitarian structure, it is prison that is too open to abuse of power such that any disciplinary method, whether it be solitary confinement, bread and water rations, or corporal punishment, is open to abuse by those who have the power.
The fault does not lie in corporal punishment as such, it ties in prisons. Scandals of bodies being dug up in prisons have been rife at least since the beginning of the 20th century. Yet the courts have consistently failed to link the cruel and unusual clause of the 8th Amendment to prisons, preferring instead to dump it on corporal punishment. The bias rests on a serious historical fallacy: the Court has assumed that, because the bloody punishments of the 17th century occurred at the same time as did the abuse of power by government officials, it was the bloody punishments that caused the abuse of power! Surely it is the other way around!
3.The punishment must not be barbaric, cruel, or a torture. We shall see in Chapter 12 that prison, because of its totalitarian structure and capricious use of time, comes much closer to the definition of torture than does acute corporal punishment. Yet the courts have consistently confused torture with corporal punishment, apparently on the blind assumption that any punishment that causes immediate bodily pain is "torture."
Chapters 11 and 12 clearly demonstrate that this is not the case, that torture essentially involves a process, one in which the notion of "due process" as stated in the 14th Amendment is not guaranteed, because interrogation, judgment, and punishment are all combined into one. Corporal punishment when used under conditions specified in this book, cannot be considered a torture.
Is it cruel? Compared with prison, it is difficult to see how anyone could claim that corporal punishment is cruel, even though the Supreme Court seems to assume as much. Here again, one must distinguish carefully among the kinds of corporal punishments. All corporal punishments are certainly not the same. Two hours in the pillory being pelted with rotten eggs is vastly different from having one's hands cut off. Yet it is the bloody punishments of the 17th century that the courts have assumed to be typical of corporal punishments.
If corporal punishment can be shown not to cause any lasting damage to the body, except that it hurts (as could be achieved by electric shock, and may also be achieved with the lash, if used properly-and this was conceded by the British inquiry of 1938), then how can one conclude that this punishment is cruel? When one adds up the special advantages it has over prison (that is, it is quicker, has fewer side-effects, is easier to calibrate, and has many other advantages which are outlined throughout this book), how could one claim that it is cruel?
Is it barbaric? Again, the Court has assumed all corporal punishments to be of the kind that were used in the 17th century, the bloody kinds of punishments. These, they say, are barbaric.
But if this is so, are we to conclude that we have only risen from the state of barbarism in the last 200 years, since such barbaric punishments were used up until the end of the 18th century? Has "civilization" only become civilized so recently, and for the other 2,500 years we were in a state of barbarism?
It is very easy to simply hang a label on a punishment and claim that it is barbaric. It is much more difficult to say why it is barbaric. The only way to do it is to claim that civilization is progressing towards some greater goal, and that what has gone before is, therefore, not as enlightened as what we do today.
One need hardly mention that there are respectable theories about the relationship between progress and history that deny that civilization has made any progress at all! To label past punishment as barbaric in this sense is the height of complacency, the bias of modernism.
If we take the other view and observe the direction that civilization has taken us: the path of atomic weapons and the clear possibility of totally annihilating ourselves, we might ask: is this the road to barbarism? Perhaps the punishments that we use today are just as barbaric (or even more so) than those of yesterday?
A good case can be made for this. We have had no corporal punishments to speak of for 200 years. What punishment have we had as the major systematic solution to criminal punishment during this time?
Prison!
And what does prison as a punishment constitute?
It constitutes the abuse of individuals through the brutality of prison violence, through neglect, through harsh diet, and mental torture. Most important of all, it constitutes the complete and utter control over the prisoner's life and liberty; his body is controlled every minute of the day by prison routine, overcrowding, guards and rules, inmate subcultures, inmate economics, and the many other well known attributes of prison life. The notion of prison (X)subculture" is what is important. It implies, ultimately, that the prisoner comes to think like a prisoner, that his mind-soul if you will-is completely and utterly taken over and penalized. We penalize his mind and body. This is the total and complete punishment of prison.(14) It is a punishment that goes beyond mere corporal punishments, even those that are bloody.
How many lifers would give their right arm (literally!) to get out?
If we call those bloody punishments of the past barbaric because they broke the body, what should we call those of today which break the soul in such an irresponsible, purposeless way? Barbaric? We can defend the harshness of prisons only if we take clear responsibility for them. To pretend that the harsh conditions are somehow "not our fault," the result of factors "beyond our control, " is primitive, animistic thinking.
3. Punishment must conform to evolving standards of decency. In Weems, two ways of making this assessment were adopted. First, a comparison was made across different jurisdictions to see whether the same offenses were punished in about the same way. Presumably, if the majority of the states did not prescribe cadena for the offense of Weems, then one could say that the Philippine law was out of step with evolving standards, and in this sense unusual."
Similarly, one could compare the punishment for the offense with punishment for different offenses within the same jurisdiction, and if it seemed to be out of step or exceptional, then one could conclude that the punishment did not fit the crime.
One can, however, play games with these criteria, as did the court for Rummel. It found that many other jurisdictions prescribed life sentences for repeating felons. But the question it did not ask was: do other jurisdictions hand down life terms as punishment for the theft of $200 or $300? The notion of felony was assumed, in a magical way, to make comparisons across jurisdictions the same. But what constitutes a felony and what does not has been the subject of much argument for many years, so that many of the in between crimes (which are the bulk of crimes) may be felonies in one jurisdiction and not in another. This is why we began early in this book with this primitive distinction between crimes, but later substituted a different classification.
There are other things wrong with this legal rule. It presumes that common practice represents, somehow, the peak of past progress. We have seen that this cannot be demonstrated. Second, it assumes that the laws of a particular time represent evolving standards of decency, when in fact there may be quite a gap between the public's views and those embodied in the law.(15)
It is a matter of options. The people, because of the lobbying of 20th century reformers, have had the option of corporal punishment taken away. If it were brought back, the chances are it would be welcomed by a majority of the people.
It is clear that the court's arguments are so thin that it would have to give way to a state which developed a corporal punishment law, or revived an old one. This would, of course, also depend on the extent to which the laws were careful to preserve the guarantee of due process (14th Amendment).
In Sum...
The Supreme Court's arguments against the use of corporal punishments on the grounds that they are cruel and unusual are very shaky indeed, and their bias in favor of prison as a punishment is clear. This means that:
1.The implementation of practices and laws that were designed to give prisons a clear retributive purpose would have little serious opposition from the Supreme Court on the grounds of their being cruel and unusual, although guarantees of due process would have to be clear.
2.The introduction by the states of laws to provide acute corporal punishments as described in this book would be subject to careful scrutiny by the Court. However, because its arguments are so ill-informed, and because the court is so unwilling (unable?) to interfere with the states' rights to enact their own crimes and punishments, the chances are that such statutes would be upheld.
I .Weems v. United States 30 S. Ct. 544 (1910).
2. A. F. Granucci, "Nor Cruel and Unusual Punishments Inflicted: The Original Meaning," California Law Review 57 (October, 1969):839-865.
3. There is one minor exception to this observation which is the question of proportionality of the death penalty for crimes other than murder. For example, the Supreme Court has found that the death penalty is disproportionate for rape: Coker v. Georgia 433 U.S. 584; 53 LEd., 2d. 982 (1977).
4. D. A. Schwartz and J. A. Wishingrad, "The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v. U. S. Excessive Punishment Doctrine," Buffalo Law Review 24 (Spring, 1975): 783-838.
5. Robinson v. California 82 S. Ct. 1417 (1962).
6. Graham v. West Virginia 32 S. Ct. 583 (1912).
7. People v. Mosley 358 NYS 2d 1004 (1974). At the time of writing, the Supreme Court of Appeals has just summarily overturned a Federal District Court of Appeals decision which had found a sentence of 40 years for the sale of nine ounces of marijuana unconstitutional. The Supreme Court by a vote of 6 to 3 did not consider the sentence to be disproportionate or cruel and unusual. The unfortunate Roger Davis, the convicted offender, must suffer from the poverty of punishment alternatives. New York Times, 19 January, 1982: A19.
8. Bell v. Wolfish 411 U. S. 520 99 S. Ct. 1861 (1979).
9. Rhodes v. Chapman 101 S. Ct. 1401 (1981).
10. Ingraham v. Wright 97 S. Ct. 1401 (1977).
11. Jackson v. Bishop 404 F. 2d 571 (1968).
12. If the public's support for the death penalty is any indication for its support for corporal punishment, it is clear that a majority would support it. Only rarely in this century has the percentage of the population supporting capital punishment dropped below fifty per cent. See A. Stinchcombe, R. Adams, C. A. Heimer, K. L. Schepple, T. W. Smith and D. G. Taylor, Crime and Punishment Changing Attitudes in America (San Francisco: Josey Bass, 1980).
13. Coker v. Georgia.
14. Michel Foucault has eloquently expressed this view in Discipline and Punish (New York: Vintage, 1979).
15. See, for example: G. R. Newman, Comparative Deviance: Law and Perception in Six Cultures (New York: Elsevier, 1976).