Anarchy X: The Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Of all the amendments to be interpreted and re-interpreted over the history of our nation, it may be the eighth amendment that has seen the most action, and is still in the greatest contention to date. Even the first and second amendments haven’t evolved as much, since they do not touch so deeply on the basic principles of what make us a society and what makes us human.

It is the specific clause of “cruel and unusual punishment” that seems to be the sticking point in most cases, and it is the one that has given me the greatest personal turmoil. In my youth I was a hardliner in many ways, for while I believed very much in the idea of a justice system that gave every possible benefit to potential defendants, I also believed that prisons were places of punishment, not rehabilitation. I also was very strongly in favor of the death penalty, in particular in cases of the most heinous crimes. I was convinced that there were some people the world would be better off without, and it was the right and the duty of society to deal with those people in the most straightforward manner possible.

I do not write these words with glee, nor do I write them with contrition. Rather I write them so as to set a basis of understanding of my own personal journey of discovery for those who may feel as I did then, or who feel differently than I do now. My hope is that by understanding the path that I have taken you may in some way understand why I believe as I now do, and even if you still disagree you may at least take some time to consider why you believe what you believe.

In terms of the treatment of prisoners, I used to believe they should be treated no better than the minimum necessary for survival. Food, shelter, and clothing were sufficient; after all, they had already proven they were not willing to contribute sufficiently to society to be a part of it, so why should society pay to keep them in any better style than the least necessary? I saw nothing cruel in this, although it might seem vindictive; after all, if I had to work to support myself, they were at least better off than I was. I have come to realize I at least have something they do not; I have the freedom to choose what I want, and if my choices are constrained by my circumstances, then so are theirs, and theirs are even more artificially constrained by having their liberty taken, even if that is the result of their own actions.

Further, it is a short-sighted thing to suggest that we should reduce humans to the level of nothing but animals, with nothing to fill their days but food, shelter, and the barest of covering. If they have nothing to strive for, no hope that tomorrow will be if not better than today than at least different, that is a cruelty and inhumanity all its own. It also breeds anger and contempt toward society among those who will someday rejoin that society; even if you do not believe prison is a place for rehabilitation, you must at least recognize the potential to create better or worse citizens among those who come out. Providing even simple things like books, athletic equipment, and exercise space allows prisoners a chance to engage body and mind. Television and internet access, even if it is monitored and controlled, provides a connection to the outside world that keeps them engaged and may even keep ennui and desperation from setting in. If nothing else, it shows in us a level of humanity that we condemn others for lacking.

The final hurdle for me was the death penalty. Setting aside the numerous studies showing the uneven and unjust applications and use of the death penalty, which no rational or honest person should, as well as the studies showing the economic unfeasibility of it, which counter any argument on those grounds; I feel there is an ethical case to be made for the elimination of the death penalty. It is not a simple case, nor is it an absolute one, but I believe it needs to be made.

The justification for the death penalty, if there is one, is that it is the ultimate penalty, and it is only handed out for the most heinous of offences, those for which there can be no lesser price. Even if one were to accept that premise, there are other factors to consider which make that untenable. I do accept that the death penalty is the ultimate penalty, for no matter how many years you spend in prison, there is always the hope for redemption, and there is always the chance of parole. There is no coming back from the grave.

In a truly fair justice system, we would ensure two things: first, that the penalty matches the crime; and second, that the bar for a guilty verdict matches the potential sentence. Obviously this would make for a convoluted and difficult system, as we would have many different potential hurdles for prosecutors to reach depending on the severity of a crime, so instead we settled on one that seems to work in most cases and that, at least at first blush, favors defendants: “beyond a reasonable doubt”. But is this enough when a person’s life is on the line? Is “a reasonable doubt” sufficient to make a person pay the ultimate price?

Absolute justice calls for absolute certainty. That is the conclusion I finally came to. Regardless of how you might feel about the morality of the death penalty in the abstract, or even in specific cases where you are absolutely sure someone is guilty, is it enough? Extraordinary cases make for bad law. Or to put it another way, are you unable to think of a single time in your life when you were absolutely sure about something, only to find out you were wrong? Care to bet your life on it?

Care to bet someone else’s?

I don’t. Not anymore.