"Mistrust those in whom the urge to punish is strong." Friedrich Nietzche

"Any and all non-violent, non-coercive, non-larcenous, consensual adult behavior that does not physically harm other people or their property or directly and immediately endangers same, that does not disturb the peace or create a public nuisance, and that is done in private, especially on private property, is the inalienable right of all adults. In a truly free and liberty-loving society, ruled by a secular government, no laws should be passed to prohibit such behavior. Any laws now existing that are contrary to the above definition of inalienable rights are violations of the rights of adults and should be made null and void." D. M. Mitchell (from The Myth of Inalienable Rights, at: http://dowehaverights.blogspot.com/)

Monday, November 08, 2010

The Curious Case of Cruel and Unusual Punishment

The Eighth Amendment to the U.S. Constitution says, in part, that “cruel and unusual punishments” cannot be “inflicted” upon criminal defendants found guilty of a crime.

In the case of Harmelin v. Michigan, 501 U.S. 957 (1991), which was about a young man receiving a life sentence without parole for possession of more than 650 grams of cocaine, the U.S. Supreme Court made two rather incredible statements.

First, it said that “[Harmelin’s] suggestion that the crime was nonviolent and victimless is false to the point of absurdity. Studies demonstrate the grave threat that illegal drugs, and particularly cocaine, pose to society in terms of violence, crime, and social displacement.”

That statement, itself, is an “absurdity.” If one studies the real cost of illegal drug use compared to the real cost of legal drug use, especially alcohol, one will find that illegal drugs, cocaine included, are nowhere near as harmful to individuals and society as a whole. This would include the real cost in dollars as well as the real cost in social impact.

The second incredible statement by the Supreme Court announced in Harmelin was that while a life sentence without parole may be cruel, it definitely wasn’t unusual. That is, a punishment for a crime must be both cruel and unusual in order for the Eighth Amendment to apply.

The Court in Harmelin believed that the purpose of the adoption of the Eighth Amendment was to prevent Congress from legislating “cruel methods of punishment that are not regularly or customarily employed.”

Why is this an incredible statement by our highest court? Well, if you think about it logically, that means the Founding Fathers of this nation thought that cruel punishments were just fine, and unusual punishments were just dandy, but you couldn’t have a punishment that was both cruel and unusual.

The cruel and unusual clause of the Eight Amendment comes to us from the English Bill of rights, which had much the same wording. However, in, say, Thirteenth Century England, drawing and quartering, a most hideous and cruel punishment, was not all that unusual. That law was not abolished totally until 1870.

In the case of Harmelin, the argument was that a life sentence (without parole) for less than a kilo of cocaine was cruel and unusual because it was disproportionate, that is, much too severe for the crime committed. The Court disagreed saying that the purpose of the Eighth Amendment was not “a guarantee against disproportionate sentences.”

The Court then stated that “[t]he amount of cocaine Harmelin possessed had a potential yield of between 32,500 and 65,000 doses. For 650 grams of cocaine, that works out to be between 1/100 and 2/100 of a gram per dose. For anyone who has ever done any cocaine, those amounts, as a single “dose,” are laughable.

But let us assume that one ounce of 80 proof alcohol (equivalent to 12 ounces of beer or 5 ounces of wine) is an average dose of alcohol, a true narcotic drug. How many ounces of booze—or the beer or wine equivalent—do you think are served every single day in America?

We know that alcohol is more harmful overall than the illegal drugs. We know that the legal substance, tobacco, is the number one killer in America, with alcohol coming in third place. The illegal drugs, as a whole, come twelfth on the list of what kills Americans.

So, from an objective and scientific point of view, giving someone life in prison without parole for 650 grams of cocaine is cruel. How many people die violent deaths from the use of alcohol. Yet making and selling alcohol is not only legal, but considered an legitimate, if not honorable business. Also, a life sentence without parole for 650 grams of cocaine is unusual when you consider that there are people who have committed horrible alcohol related crimes and have done as little as eleven years in prison.

But my point in this article is this: Did the Founding Fathers really mean that only a crime that was both cruel and unusual would be prohibited by the Eighth Amendment? Did they believe that a cruel punishment was okay and that an unusual punishment was okay, just so long as the punishment was not both? I think not.