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Unusual punishment

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As the US moves toward the election of a president after the one who failed to fulfill his promise to close Guantanamo Bay, and whose Attorney General, Eric Holder, made all of Bush's problems with conflict between the Geneva Conventions and Gitmo disappear within months, it is useful to move on to another area of 1791's Eighth Amendment other than the one that seems obvious: criminals will never admit the crime of "Cruel and Unusual Punishment" if they can pretend that it is not cruel and get away with it.

But what about Unusual? What does it even mean?

There is little discourse on this topic in the popular press. Even those in the legal world find it much more comfortable to believe that the two terms are indistinguishable. It seems obvious, however, that since "cruel" deals with anomalies of severity, concentrating on the effect on the, um, victim?, "unusual" must specify anomalies of type, distinguishing the choice of punishment.

This is, arguably, the most important part of the definition, as actions that "shock the conscience" are not merely easy to spot, they are, by definition, impossible to miss. It is far more important for law to put the spotlight on those punishments that do not "fit the crime", that evoke no reaction, but are nonetheless disproportionate

There is another aspect to unusual, with which the US Constitution concerns itself: the avoidance of the potential tyranny of government. Obviously the so-called "Founding Fathers" were ruling class, and quite evidently had no intention whatever of granting the masses true Democracy, and would keep it from them by any means necessary, but they WERE concerned with justifying their actions against the British Government, that were quite exactly what they would not want anyone to enact against THEM. So they were concerned with a way to portray their own actions as exemplary while maintaining those actions as reprehensible. The easiest way to do this was to take the particulars of their situation vis-a-vis the British and paint the British as tyrannical in as specific a way as possible, and be as vague as possible at granting freedoms to their own worker population, which they would keep hemmed in by the specifics of law. Simultaneously, the rights that they preferred to maintain for their own class must be defined, while in practice these freedoms were not flowing to the lower classes (and obviously not available at all to slaves) So the other sense of unusual is the kind of punishment meted out, for example, to partisans and rebels fighting against the Nazis in WWII, and the civilian population in the partisan operational areas when the rebels themselves could not be found. The exact sort of punishment advocated by Drumpf.

Communications Management Unit Edit

As a part, at least, of our society evolves, the general public are becoming increasingly concerned about the effects of solitary confinement on the human psyche; the psychologists among them who are trained to understand the science behind the effects on the human psyche are speaking out as well.

Putting these concerns aside for the sake of argument, the belief that things that have been done should be done (which logically is no argument for their morality or value at all), AKA Tradition and Legal precedent, says that solitary confinement is OK.

So when it is used in a cruel way, it is harder to attack it. The grounds of "cruel" alone is less effective than when "unusual" is added.

What do people convicted of terrorism, or dealing drugs, or those "who have spoken out at other prison units and advocated for their rights and have taken leadership positions in religious communities", or those who "tried to recruit or radicalize others behind bars" or those who harassed victims, judges and prosecutors, or "tax resisters, a member of the Japanese Red Army and inmates from Colombia and Mexico", have in common? Nothing, obviously, except for their race, ethnicity, or religion, apparently, when they are Muslim and Muslims are 6% of the prison population and 66-72% of isolation units called the Communications Management Units. Critics have another name: Guantanamo North. The list shows that the punishment of Gitmo North is disproportionate to the crimes. It constitutes Unusual Punishment simply because the crimes vary so much in severity.

"We were concerned about what appears to be racial profiling and also a pattern of designations to the CMUs of people who have spoken out at other prison units and advocated for their rights and have taken leadership positions in religious communities" - Alexis Agathocleous, Center for Constitutional Rights

Interpretations Edit

Law experts may use the word literally, declare it insignificant, or give it an even more powerful interpretation, tending towards, "unprecedented" :

" Under the common law ideology that came to the framers through Coke, Blackstone, and various others, the best way to determine whether a government practice comported with basic principles of justice was to ask whether it enjoyed "long usage" - that is, whether is was continuously employed throughout the jurisdiction for a very long time. The opposite of a practice that enjoys "long usage" is an "unusual" practice, or an innovation. The word "unusual" is included in the Cruel and Unusual Punishments Clause to direct courts to give scrutiny to new or innovative punishment practices" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015344

http://www.acsu.buffalo.edu/~dh25/articles/WhyMustPunishmentbeCruelandUnusual.pdf

Internet literal interpretation of "unusual" :

  1. That punishments are not excessive and are proportionate to the crime.
  2. That punishments are standardized (at least to some degree) and are not decided arbitrarily at the whims of judges or other authorities.
"It is the second part that the word "unusual" addresses, and why frequency of application can be important. In a just society it is important that all citizens are reasonably aware of the most likely punishment if they commit a crime. The word "unusual" is meant to constrain judges from assigning an arbitrary punishment rather than one of the legislatively-proscribed punishments.

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See also Edit

  1. Rhona K.M. Smith, Textbook on International Human Rights, second edition, Oxford University Press, 2005, p. 245.

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