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Legal Features

Curbing Abuse of the Convicted

By Jay Ambrose
From the Freelance Star

The purpose of the Bill of Rights, as Thomas Jefferson wrote in encouraging the amendments to the Constitution, was to "guard the people against the federal government," and one thing is certain if you are going to do that. You must impose limits on how that government treats people accused of crime.

Thus we get four amendments - including the Eighth - that aim to prevent the kinds of abuses so readily at hand when the government is deciding whether you may or may not have your liberty, or even your life.

The Eighth Amendment has mostly been in the news because of debate over capital punishment, and, lately, because of treatment of prisoners at Guantanamo Bay. But the short sentence that constitutes the amendment has two parts besides the one that directly applies to these controversies, namely, the prohibition against cruel and unusual punishment.

The first part of the amendment says there must not be excessive bail, which is not the same as saying the courts must guarantee bail. It has been understood from the start that some offenses are so awful and the motivation to flee so great that the courts need not release the accused prior to trial.

Otherwise, however, you don't want people in jail who haven't been proved guilty of anything, and so you let them loose with bail, which is to say, with the payment of money that will be forfeited if the accused does not show up for trial.

In England, magistrates of the king frequently would require bail incommensurate with the crime, and so, through a series of acts beginning more than 700 years ago, the English forged a principle saying that bail cannot be in amounts exceeding the crime's seriousness.

The amendment's second clause, which concerns fines, does not apply to civil suits, which some people might regret, considering that punitive damages in some civil-suit rewards have been as astonishing as they are unjust.

Clearly, this part of the amendment means that fines should bear a reasonable relationship to the crime, but students of the U.S. Supreme Court note that it has never been precise on what this reasonableness might amount to.

In thinking about the most discussed portion of this amendment, don't suppose it a totally simple thing. What's forbidden is punishment that is both cruel and unusual, and all punishment, after all, is likely to cause some degree of suffering. That's why we call it punishment.

Surely, the Founders wanted to avoid any return to such barbarous and discontinued English practices as disemboweling a convict and then pulling off his arms and legs, and the Supreme Court says the government cannot torture convicts nor punish them arbitrarily or unnecessarily.

Punishments, the court also has held, should not be disproportionate to the crime. But the chief meaning of the clause, it has been argued, is to make sure no particular lawbreaker is punished in some more brutal way from how others guilty of morally comparable offenses are punished.

Does the clause mean the death penalty should be abolished? The Supreme Court has never said so, though it has ruled, among other things, that the death penalty must not be inflicted for any reason other than murder, that it must not be discriminatory, and that it cannot be applied to the mentally retarded or to anyone whose crime was committed under the age of 18.

The decision concerning murders by minors came just this year, and, according to those who believe the Constitution should be interpreted in accordance with its original meaning, is an outrage. Robert Bork, who was rejected by the Senate as a Supreme Court justice, has noted that the criminal at issue, who was 17 at the time, broke into a house with a friend, kidnapped a girl, took her to a bridge, tied her up, and threw her in a river, where she drowned. The court said that "evolving standards of decency" required that the youth be spared execution. Bork notes that, of the 38 states with a death penalty, 20 permitted it for murderers under 18.

The standards the court refers to are clearly not those of society at large.

Bork's fundamental position is that it is the Constitution that matters, not the supposed sensibilities of justices, and that court alterations in the document's meaning (except through further amendment) make it pointless.

Scholars agreeing with him note that the authors of the amendment wrote it at a time when capital punishment was common, though they made no reference to it.

It is inconceivable they meant the amendment to outlaw the death penalty, although legislative bodies are certainly free to do so if persuaded by any number of strong arguments.

Also this year, the debate has been intense on the question of whether the Eighth Amendment applies to enemy combatants detained by the United States at Guantanamo Bay in Cuba.

To suppose it does would be to assume for the first time that enemy forces captured during a war are entitled to the same Bill of Rights protections as citizens in the criminal-justice system.

That's not to say, of course, that Congress has no say in how those detainees are treated.

Ambrose is a columnist and former editor of The Rocky Mountain News and the El Paso (Texas) Herald Post.


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