Cruel and Unusual Punishment

The Bill of Rights reads, “Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

This is, on the face of it, a variation of the guarantee of due process. Here the guarantee is that no person or business will be singled out for punishment beyond what is normal for the offense done. Due process or government by law carried into the realm of sentencing as well as in the area of investigation, arrest, and trial. This relates quite clearly to the general history of due process as guaranteeing citizens a reliable relationship between action and outcome. Failure to follow this rule allows the state to arbitrarily favor one side over another, and to confiscate property. As such it is another instance of rights guaranteeing the freedom of citizens to act with confidence in their own interest without fear of arbitrary legal actions against them. It helps ensure the operation of Adam Smith’s ‘Invisible Hand’. (Excessive punitive damages today violate this protection and the general principle involved.)

At the time the Bill of Rights was written corporal punishment was common. Flogging, keel-hauling, stocks, etc. were in use in the Colonies. Forbidding corporal punishment was not the clear intent of this clause in the Bill of Rights. Its intent was to prevent abuses of power, violations of due process and proper legal punishment, on the part of the Federal Judiciary.

It has come to mean that no Citizen will be subjected to corporal punishment. In the couple of centuries of the existence of the US all forms of corporal punishment except the death penalty have been designated cruel and unusual punishment. Occasionally the death penalty has been similarly designated. This evolution of standards is interesting in itself because of the history of this prohibition.

In Athens it was a maxim of the law that a Citizen would be punished in his property and a slave would be punished in his person. It was illegal for any Roman Citizen to be tortured. In the Middle Ages, in initiation to Knighthood, an initiate was given a symbolic blow to his face and admonished that that should be the last blow he ever accepted without combat. This general principle that fully enfranchised Citizens should never be subjected to corporal punishment recurs in the history of all societies where a body of equals with equal rights existed. It was incorporated in Plato’s Laws and Aristotle’s Politics. It is worth noting that this applies to adults not children. As in the initiation of the Knight above, most societies have a right of passage marking off the transition from child to full Manhood, Personhood, or Citizenship.

In a pecking order, those higher in the pecking order can with impunity physically strike those lower in the pecking order. This social animal instinct is embedded in most of the legal systems in history. This feeling that persons who are free Citizens cannot be punished in their bodies has been reborn in our legal system under the freedom from cruel and unusual punishment.

This discussion does not make sense in the sense of a blank slate hypothesis of human nature. It is possible to argue rationally that it is kinder to punish a poor Citizen in his person than in his pocketbook. Consider a traffic fine. If you hit a Citizen with a fine plus court costs of $128.00 dollars or so, his children may go to bed hungry for a week or a month. He will feel a failure to his family, his wife will be disgusted with him, and he will suffer for weeks or months. If you give him a choice between 20 lashes and the fine and he chooses to take the lashes and preserve the money for his family, he could be the hero when he gets home. Enjoy his wife’s sympathy instead of her anger. If you administer lashes instead of prison time you can save the state and taxpayers thousands of dollars for every month in prison you avoid for minor offenses. It is possible to argue reasonably and rationally in favor of corporal punishment. Frequently simple arguments overlook the complexity of human nature and are misleading.

If corporal punishment were administered voluntarily on the basis of accepting lashes instead of paying a fine, this would create a de facto class system. The poor would be beaten and the wealthy would buy their way out of legal problems. Once practices become established, they become customary. Customs are accepted as morally right. The freedom of the rich from corporal punishment and its use for the poor would create a fundamental split in society. The poor would be non-persons in a real sense, subject to a demeaning punishment which the wealthy could not be subjected to. Similarly, today a poor person paying a fine loses the money needed to buy food or clothing for his family. A wealthy man who might spend $7,000.00 for a bottle of wine or $45,000.00 for a fancy meal can afford to pay the same traffic fine with no more thought than you or I might give to spending 50 cents for a coke. This is not fair and impartial punishment. The punishment of the poor man is much more brutal and cruel than that of the rich man though the cash involved is the same. In one European country they adjust traffic fines to the income of the violator. This has resulted in some dot-com millionaires paying traffic fines in the tens of thousands of dollars. This is appropriate.

A wealthy person has every right to enjoy the fruits of his labor. The best wines, the prettiest girls who are interested, private jets, fancy hotel rooms, all are the legitimate rewards of wealth. Traffic violations place the lives of his fellow citizens at risk. No one, no matter how wealthy, has the right to recklessly endanger the lives of his fellow citizens. To assume such a right is to assume the right to inflict physical pain and suffering on your legal equals. This is pecking order behavior and the antithesis of real human rights. Punishment in such violations should be calculated to sting the wealthy as much as they sting the poor. A $150.00 dollar fine for a minimum wage earner is not the same punishment as a $150.00 fine for a millionaire. Frequently simple arguments overlook the complexity of human nature and are misleading. It is not cruel and unusual punishment to exact a punishment calculated to inflict a similar level of suffering based on income. This has nothing to do with punishing the wealthy because they are wealthy. It has to do with maintaining the dignity and importance of Citizenship. No Citizen can be allowed to feel that they can casually place the lives and safety of their fellow Citizens at risk because of their status, be it status by birth or status by wealth. It is necessary that such fines should be based on a relationship to income and not be arbitrary. To fine one millionaire 50,000 for an offense and to fine another millionaire 10,000 for the same offense would violate the due process nature of the original guarantee against cruel and unusual punishments, or excessive fines. To exercise such a difference in fines based on real difference in the punitive effect of the fine due to one person having an annual income of 20,000 dollars and the other an annual income of 2 million dollars does not.

A fine is not excessive if it is uniformly calculated on the basis of impersonal facts and inflicts roughly the same suffering on the people it is levied on. It is not arbitrary if it is predictable and the person being fined could have reasonably known what to expect based on his violations of the law. The relationship between action and result that underlies Adam Smith’s ‘Invisible Hand’, the right to property, the right to due process, etc. is maintained intact.

For corporal punishment to be a crime against natural law there must be some under riding, hardwired, instinctive, mechanism in human nature which is triggered by physical abuse without the chance for retaliation. This mechanism is apparent in pecking order behavior, but its implications may be extremely dangerous. In nature the Alpha Male is always right. His actions cannot be challenged because he can and quite possibly will kill anyone who challenges him. He can physically punish those who appear to be challenging him without fear of retaliation. Or do so accidentally as in the case of the rich man ignoring traffic laws above. When the state claims this kind of power, it may be claiming a similar infallibility. It may trigger an instinctive reaction on the part of the populace which inhibits critical thought and forces acceptance of arbitrary rule. The history of Rome under the Principate is interesting in this regard. The Emperor was the ultimate Alpha Male. He could and sometimes did go through the streets of Rome hitting and even killing anyone he wanted to without retaliation. A religious horror was associated with defying him. To resist such physical abuse was a crime against the gods. This kind of deep seated emotional apprehension against a specific and to us entirely reasonable action, simple self defense, suggests an instinctive mechanism.

It is plausible that the same mechanism is at work in the so-called Stockholm Syndrome. The tendency of persons held hostage by terrorists under the threat of terrible physical retribution and death to become sympathetic to and rationalize their oppressors motivations. A State which assumes such an authority may be assuming a cloak of infallibility. By pushing buttons hardwired into people by an evolution which made such a reaction to the superior physical force of dominant males a survival instinct. Such speculations are only plausible speculations, but the history of this prejudice against corporal punishment in free societies must be respected.

It is clear from the persistence of this prejudice against the corporal punishment of Citizens that people just feel (instinctively) that it is wrong to treat a dignified person, a person with rights in this manner. Punishing a Citizen in his body reduces him to non-Citizen status. Similarly allowing one class to recklessly treat another in this manner reduces that other to a non-Citizen. Reducing a Citizen to non-Citizen status is harmful to a society which expects all Citizens to be as strong as possible. Allowing such class discrimination is therefore harmful to society. A free society counts on the strength of it’s individual Citizens to make it strong. It expects that those who volunteer with a sense of personal commitment to do those things necessary for its preservation will act with a dedication and passion that makes them more effective than if it were to compel all to act as it directs without respect to the individual choice.

To quote Herodotus,

This is again an example of Adam Smith’s ‘Invisible Hand’ at work. Its working here was largely to promote incredible valour in battle, but the behavioral principle is the same. Again, it was a maxim of Athenian law that a Citizen was punished in his property, a slave in his person.

To quote Machiavelli’s “The Prince”,

Totalitarian societies choose an opposite course than a free society, making the subjection of their citizens their first priority. To quote Machiavelli again,

This prejudice against corporal punishment of citizens is tied historically to those societies called free.

In interpreting the ‘cruel and unusual punishment clause’, the Supreme Court has possibly erred in strict terms of Positive Law, but has obeyed what is apparently an imperative of Natural Law. The interpretation is therefore a correct and proper one. It must be assumed on the basis of the history of this prejudice that corporal punishment violates the dignity of free persons in a personal manner that is insufferable and destructive on an instinctive level. If instituted as acceptable practice, considering the persistence of the prejudice of free persons against it, it must be assumed to attack the very foundations of the psychology and dignity of true individual freedom.

In Maslow’s Hierarchy of Needs, respect is one of the higher needs. Physical punishment, physically striking another, is a mark of disrespect of demonstrating and proving that a person is lower than others in the Pecking Order. If the State which is the servant and tool of the Citizens assumes such a power, it reduces the Citizens to Subjects and elevates itself to the status of Master. A Free Society does not apply corporal punishment to its Citizens.

Death is not a form of Corporal Punishment in the psychological and behavioral sense used here. Death was an accepted punishment in all of the societies cited above for various offenses, it’s history does not allow it to be placed in the same category as flogging, branding, mutilation, etc.