Cruel and Unusual Punishment Hiding in Plain Sight

Followers of this blog will know the phrase “cruel and unusual punishment”. It’s a phrase that we hear wherever people talk politics. Readers may not know where that phrase comes from or why it still matters in the 21st century.

Some of us, Americans in particular, will guess that the phrase originated in the US Constitution. The phrase does appear in the Bill of Rights, but that isn’t where the phrase first appeared.

Historians believe that the phrase was first used in the English Bill of Rights of 1689. This seminal declaration of human rights limits the powers of the monarch and boosts the role of Parliament. It requires free elections and freedom of speech in parliament. More important for us today is that it defines individual rights.

In particular, it reads: “And thereupon the said lords spiritual and temporal, and commons, pursuant to their respective letters and elections…do in the first place (as their ancestors in like cases have usually done) for the vindicating and asserting their ancient rights and liberties, declare… That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.”

This is the first time we see these criminal justice rights on paper. Still, we can infer something from this wording. The document calls them “ancient rights and liberties”. The framers are not saying anything radical or new. These freedoms are customary. They were part of the common law tradition even before this law was passed.

As noted, the founders in America used this exact wording in the Eighth Amendment to the US Constitution. We also find it in the Canadian Charter of Rights and Freedoms. The United Nations incorporated the same phrasing in Article 5 of its Universal Declaration of Human Rights.

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

These precedents show us an ancient tradition of restricting punishment in a civilized country. Given that, suppose that a US federal judge said that a punishment “may press the outer bounds of what most humans can psychologically tolerate”? How should we judge discipline that causes “depression, anxiety, rage, claustrophobia, hallucinations, problems with impulse control, and/or an impaired ability to think, concentrate or remember”?

Wouldn’t this punishment be both “cruel and unusual”? What is this unbearable activity? Waterboarding? Sleep deprivation? Electric shock? No, they are describing solitary confinement.

We hear about prisoners being placed in segregation all the time. Sometimes it’s as a punishment. Other times, it’s to separate them from the general prison population. The euphemism for this latter reason is “administrative segregation”. Sometimes, people are pleased when the system throws some reprehensible prisoner into “solitary”.

Yet, what does this treatment achieve? We’ve seen that segregation prisoners suffer severe mental illness. Worse still, solitary confinement causes a high number of suicides. Segregation does not improve prison safety or prepare prisoners to return to society. In fact, evidence shows that solitary confinement makes prisoners less able to make a fresh start after they are released.

Prisons have no effective standards in place around segregation. Prisons are neither accountable nor consistent in how they treat segregation prisoners. Typically, prisoners in seclusion spend twenty-three hours a day alone in a barren cell without so much as anything to read. They get one hour a day outside their cramped quarters, strictly supervised and handcuffed.

Why is segregation still used? It’s partly because old habits die hard. It’s also a way to save money. In the west, beginning in the 1980s, the trend was to get tough on crime and to balance budgets. Prisons handled more prisoners with fewer resources. Voters bought into this but it made it hard to run a decent jail. Prison authorities had no choice but to resort to solitary confinement to keep order. In the US, states have built gigantic “super-maximum security” facilities. These have made a bad situation worse.

We talked about some long-standing human rights norms above. Cruel and unusual punishment has been condemned for centuries. Today, human rights law seeks to end to solitary confinement for most prisoners. Modern standards specify segregation to be the exception, to be limited to difficult cases, to be for a short time and to be without undue deprivation.

Some argue that this is “coddling criminals”. The truth is that these reforms are fundamental human rights. Human rights law states that “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Jail is not meant to be for punishment. Courts impose sentences to protect society, denounce the crime and rehabilitate the prisoner.

As we have seen, the condemnation of prison as “punishment” is neither new nor drastic. Does your corrections system put prisoners in solitary confinement? Under what circumstances and for how long? Do some research and find out more. If you don’t like what you earn, write to your elected officials and demand change.

Even the most hardened criminal is part of the human family.


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