Analyzing the Eighth Amendment

 

     The Bill of Rights, a highly necessary addition to the US Constitution, has been a game changer to our society and the world in general.  These ten amendments addressed practically every grievance that former British subjects had with previous monarchies, absolute or limited.  They cover many issues, from free speech to fair trials to states’ rights.   But, they have also helped throw a spotlight on some of the most controversial, divisive issues that humans have ever had to deal with.  This type of transparency is both edifying and horrifying, because you can’t fix what you don’t acknowledge (like the pandemic belly that I have carefully cultivated for the last year).  The Eighth Amendment is one of those spotlights, and that transparency has led to changes in our society, for better or worse.

       The Eighth Amendment is the shortest of all the Bill of Rights, and reads “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  Two of the three parts clearly have to do with money or possessions, but the third could relate to almost any kind of consequence.  The purpose of the amendment appears to be to ensure that punishments passed down by the federal government do not overreach, as some governments have been known to do (stoning for infidelity, perhaps?).  But, the main questions become, “What is the purpose of punishment?  What are we trying to achieve with it?”

      When I bring up the Eighth Amendment to my classes, it almost immediately morphs into a death penalty debate.  People find it interesting, mainly due to the evolution of methods society has chosen to use, a topic for another discussion. Yet, there is no mention of the death penalty in the amendment itself.  To add to the point, some would argue that death isn’t even the worst form of punishment that is legal in the US justice system.  Solitary confinement is.

       Solitary confinement is defined by Medical News Today as the physical isolation of individuals who are confined to their cells for 22.5 hours or more per day.  They eat, sleep, and use the toilet in their confined area, often with limited educational materials and no windows.  The most excessive case of solitary confinement in the US, according to the Innocence Project, was Albert Woodfox, who spent most of his 44 years and 10 months of incarceration in solitary.  A former Black Panther, he was accused of killing a white correctional officer.  He was finally released at age 69, and is now a political activist. Considering that solitary takes away many of the sensory interactions that human beings need to stay mentally and emotionally healthy, it is amazing that Woodfox emerged as intact as he did.  The isolation we have experienced from pandemic protocols has done a number on many people, and that is not remotely (pun intended) the same as solitary.  So, again, the question is, what is the purpose of punishment?

         The typical response is justice. A person needs to pay a price for what they did, something along the lines of Hammurabi’s eye for an eye philosophy.  Some students think of this more as revenge, but the Eighth Amendment clearly limits us in that regard, expressly forbidding anything deemed excessive, cruel and unusual.  If someone commits an overly heinous crime, such as torture, we are not allowed to torture them back. Yet, according to the Supreme Court on more than one occassion, if a person commits murder, we can murder them as a response.  I also wondered about the wording of “cruel and unusual” versus “cruel or unusual”.  Does this mean we can be cruel in our punishment as long as we are not unusual about it, or vice-versa?  And, if we use this form of punishment long enough, does it not now become usual?

         So, if revenge can not be the motivating factor, why do we incarcerate or execute?  Some students will answer that it is to send a message to the rest of society, and remove criminals from the mainstream.  This made some sense to me, thinking back to the Roman empire, and the displaying of crucifixions along the Appian Way after the Spartacus rebellion,  with dead or dying criminals hanging from them.  These made it very clear to all visitors to not screw with the hosts.  But, in the US, the effectiveness of capital punishment or incarceration on the crime rate is highly debateable, and may very well not have the desired effect of deterring crime.

        Inevitably, at least one student will say they oppose the death penalty, and they would rather see someone suffer for the rest of their life in prison, possibly solitary confinement.  This insinuates the desire to inflict more suffering, which, again, the Eighth Amendment is clearly trying to avoid.  And the question still remains, why are we punishing?  What do we want to achieve?

        In our modern times, many would argue that the main purpose of  punishment is rehabilitation, which can not be achieved with capital punishment.  The hope is that we can get the person to see the error of their ways, be remorseful, and be released back into society as a better person who can now be productive in society.  But, does incarceration achieve that?   Is the prison system designed for this, especially when many prisons are run by for-profit, private firms?  The newest methods of dealing with drugs and addictions is treatment, not jail.  What should our jails be doing to treat the causes of criminal behavior?  And, on the other hand, what do you do about crimes with high rates of recidivism, like pedophelia which seems to have very little chance of reforming?

        The ultimate goal should be, and most likely is, the safety of as many citizens as possible.  But, the Constitution throws down some strict parameters as to the methods that can be used.  According to deathpenaltyinfo.org, twenty-eight states still allow for capital punishment, as does the federal government.  According to the New York Times, nineteen states still allow for corporal punishment in schools.  The debate on the effectiveness and constitutionality of both will continue for at least the near future.  If we take away these modes of punishment, will more crime occur?  Do criminals have more rights than victims?  Are we doing our best to protect our citizens?

     This issue creates a strong debate between the collective hearts and minds of our society.  If someone were to harm anyone in my family, I would not only want them killed, I would most likely want to do it myself.  In the emotional state that the crime would put me in, I firmly believe I would wish a terrible punishment on the person who committed it.  But, this is why our legal system doesn’t leave these kinds of decisions in the hands of the victims’ families.  Justice needs to be meticulous and fair.  But, also, our definition of justice is evolving as our society evolves.  The Eighth Amendment may create more questions than answers, but at least, it appears, we are asking the right ones.