What is Cruel and Unusual Punishment?

Sign at Tin Horn Ranch, California - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

Definition of Cruel and Unusual Punishment: Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the Common Law, or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community.
legal-dictionary.thefreedictionary.com

This month in my community two men were arrested for burglary. They allegedly were responsible for over a hundred crimes in the last few months, one involving my neighbor. Both had long criminal histories, but once incarcerated spent only a fraction of their sentence behind bars. Like many non violent offenders, their release was ordered due to over crowding of the county jail, which in the minds of modern jurists constitutes cruel and unusual punishment. Their rights are deemed so sacrosanct that it is preferable to allow them to prey on their neighbors than to suffer the humiliation of having to share cozy accommodations with fellow inmates.

When Clarence Thomas was appointed to the Supreme Court, I had misgivings. Like many others who allowed the media to smear him, I ate crow as Mr. Thomas became the foremost originalist constitutionalist on the bench. A serious student of history, Mr. Thomas interprets the Constitution from the perspective of its authors and in the process disparages the argument that the document constantly changes to accommodate the norms of its citizens.

Jeffery Toobin’s recent article Partners from the New Yorker castigates Thomas for his crude interpretation of the 8th Amendment. Supporting the view that lethal injection is not cruel and unusual, Thomas listed punishments such as disembowelment and draw and quartering which were cruel and unusual even by 18th century standards and demonstrated the cavalier application of the term nowadays. The Founders’ intent was to deny the imposition of excessive punishments but not to dilute them to the point that they failed to deter crime or in fact punish the culprit. It is one matter to torture a criminal to death and quite another to release him because of overcrowded conditions in prison. It is difficult to believe that the average person or community would find this level of confinement “so disproportionate to the offense as to shock their collective moral sense.”

A prosperous country has no end of experts and altruists who passionately believe with effort and an unlimited amount of money even the most incorrigible criminal can be rehabilitated. If not, then the perpetrator must be treated in such a humane fashion that traditional punishment is virtually unrecognizable. Yet for all of the expense, recidivism rates remain high. With the exception of innovative programs such as those developed by Alan Hopkins, the American penal system neither rehabilitates or adequately punishes criminals to the extent where incarceration is a deterrent to crime.

The Count of Monte Christo and Papillon were written to bring public attention to the sadistic and inhuman abuses of the 19th and 20th century French penal system. The 8th Amendment forbade these barbarous acts, but in no way was intended to expunge sentences of criminals who are provided three meals a day, health care, and conjugal visits, albeit under cramped conditions.

The High Court bears much responsibility for failure of the criminal justice system. In theory the Supreme Court is America’s best legal talent representing diverse backgrounds and opinions, but in actuality every justice currently sitting on the Supreme Court is either a graduate of Yale or Harvard Law School. Where are the judges trained in the South, West, North, and Midwest? This is extraordinary given the number of excellent law schools in the country. When intellectually gifted brothers and sisters have children between them, it is no surprise when their offspring are born with severe congenital disabilities. Inbreeding of brilliant jurists is no different and often results in bad law and abandonment of common sense.

ALS and the 8th Amendment

Death Valley - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

8th Amendment United States Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The 8th Amendment to the Constitution is based on the English Bill of Rights of 1689. The United States Supreme Court ruled that the “cruel and unusual punishment” provision applies to state as well as federal jurisdictions and includes both official and non official punishments. Of all the Bill of Rights, the “cruel and unusual” section of the 8th Amendment has changed the most since its inception as societal norms regarding punishment have evolved.

There is a raging legal controversy whether any form of execution constitutes cruel and usual punishment. Opponents of the death penalty contend the most benign method, lethal injection, is cruel and unusual even though thousands of patients undergo similar techniques when experiencing general anesthesia daily. This method of execution is unusual only by the degree of painlessness in which it can be given. The condemned is rendered unconscious by an enormous dose of intravenous anesthesia, followed by a lethal dose of paralyzing agent, and finally potassium to stop the heart.

Cruel and unusual punishment is administering only the paralyzing medication through the intravenous line. The mixture is given slowly in small doses, so the fully conscious victim can breath but just barely. It is impossible to move the arms or legs or even swallow. Imagine the agony of suffocating while being completely aware of the situation. The most ardent proponent of the death penalty could not morally support this degree of sadism. No one in society must involuntarily bear this degree of torture except, of course, patients in the terminal stages of Amyotrophic Lateral Sclerosis (ALS).

Last year my friend was diagnosed with ALS or Lou Gerhig’s Disease. There is no known cause or cure, and patients are faced with declining neuromuscular function throughout the course of the disease. In the final stages they are unable to swallow or breath and cannot survive without a feeding tube and ventilator. Those who resist aggressive medical intervention face the prospect of suffocating shortness of breath and starvation while being fully awake and aware.

Considering the nature of this terrible disease, patients are compelled to devise end of life care plans to cope with deteriorating muscle function. Those who elect not to prolong life by artificial means must let the disease relentlessly progress or resort to measures which hasten the process. For patients and their families these complex decisions are best made when physicians and end of life specialists present all the options. If the stress was not enough, ALS patients who live in states whose laws do not sanction assisted suicide are treated as criminals if they elect to prematurely terminate life by this method.

Contrast this scenario with the prisoner sentenced to death. Death penalty opponents interpret the 8th Amendment so strictly that no method of execution satisfies the constitutional requirement. This munificence is extended to the most vicious, pathologic criminals, but what about the innocent victims of ALS? Is it not cruel and unusual punishment that they are denied legal medical care to ease their torment and allow them to pass in a dignified and gentle manner?

In states with assisted suicide laws most patients who register in the program do not commit suicide. The solace of having a choice of when and how to end one's life often is enough to let matters take the natural course. Patient choice under these dreadful circumstances is the only humane alternative. Are not the victims of ALS entitled to the same rigorous protections under the Constitution as the criminal?