June 28, 2006

The Cadillac of Criminal Penalties

by Armen

Will asks below:

Frankly, I don't see the constitutional difference between locking somebody in a concrete cell for 5-10 years and then executing them, and locking them in a cell for 30-50 years until they die of so-called natural causes. Milbarge, PG, do you?

I couldn't let this pass. And of course, the answer to that question can be found in a couple of rhetorical questions. Is there a difference between locking someone up in a cell for 30-50 years and tarring and feathering him every day versus just locking him up? Is there a difference between locking someone up at San Quentin in beautiful Marin County versus handing him off to Yemeni authorities to dole out punishment? Is there a difference between the state announcing the date your life will end in a warrant versus the state separating you from society for the rest of your natural life? Is there a difference between a punishment scheme that has nothing to do with an individual's life span and one that does? Well, the Europeans certainly seem to think so on this last one.

Incidentally, the comment thing still sucks. If this is the case for you also, please leave a comment.

June 28, 2006 11:11 AM | TrackBack

While the individual prisoner and Europeans feel a difference, that's not the same as a constitutional difference. Tarring and feathering someone every day was an unusual punishment even in colonial times, so Ear-notch Scalia would have to deem that an 8th Amendment violation. Ditto handing a U.S. citizen off to Yemeni authorities.
But the 5th Amendment distinguishes capital crimes from other ones, so the Constitution's text does evidence an original understanding difference between execution and life in prison. Moroever, I think the death penalty is imposed too unevenly to satisfy equal protection even for those who are guilty as charged, and its finality renders the state unable to compensate the victims of injustice for those who are innocent.

Posted by: PG at June 28, 2006 01:27 PM

Wait. How does the Fifth Amendment distinguish capital crimes from other ones? Both capital and "otherwise infamous" crimes have to come from a grand jury indictment (with exceptions). The double jeopardy guarantee applies to both "life" and "limb". You get due process of law before any deprivation of "life," "liberty," or "property". So how does a capital crime differ from an otherwise infamous one where liberty and limb are on the line?

As to compensation, this seems too quick. I question whether the state can really fully compensate even the wrongfully imprisoned; and of course they can't be compensated after they're dead either.

Posted by: Will Baude at June 28, 2006 03:16 PM

I meant the 5th distinguishes inasmuch as capital crimes are in there as such. The Constitution perceives that capital crimes are a particular class and moreover that protections need to be greater for charges that will result in more severe punishments. For example, one doesn't need grand jury indictment for a misdemeanor. Similarly, the first crimes act said no person 'shall be prosecuted, tried, or punished, for an offense not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offense, or incurring the fine or forfeiture.' A capital offense lacked such a statute of limitations.

Of course the state can't compensate the wrongfully imprisoned fully, any more than a physician can compensate fully for having cut off your penis negligently (and in tort deformed states, cannot compensate by more than $250k beyond economic damages). But this is America and money is the form of compensation we have.

Posted by: PG at June 28, 2006 05:25 PM

As long as "cruel and unusual punishment" is defined by the "evolving standards of decency" then arguably all of my questions may be answered in the affirmative. The first two certainly must, the last two...well only time will tell.

I won't bother with analogizing to acceptable forms of punishment at the time of the signing. I'll just note someone ironically that today's opinion in Beard was about the type of reading material that prisoners may have.

Posted by: Armen at June 28, 2006 10:11 PM


As the guy who fixes things around here, if the comments thing "sucks":

a) You could try giving me a more detailed description of what's going on. "Sucks" fails to be particularly helpful in debugging.

b) You could shoot me an email instead of leaving a comment on the front page.

Posted by: A. Rickey at June 29, 2006 10:52 AM

I plead not guilty: I didn't write the post.

Posted by: Milbarge at June 29, 2006 12:38 PM

D'oh. For Milbarge, read Armen.

Posted by: A. Rickey at June 29, 2006 04:59 PM
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