8 ms·

Whenever I hear about the American justice system I wonder how it can live in the presence of the 8th amendment. Both life sentences (or multi life sentences)

Whenever I hear about the American justice system I wonder how it can live in the presence of the 8th amendment. Both life sentences (or multi life sentences) and death penalties are seen as cruel and not permitted in most of Europe.

SmellTheGlove 10y ago
It's because Europe doesn't interpret the 8th Amendment, the US Supreme Court does. And here, there's a really high bar for cruel and unusual. To the point where as long as it takes place in a prison, it seems to be okay. I don't like or agree with it, but the legal meaning of the 8th Amendment is not obvious from its text. That might be the first sign that we're getting it wrong, actually.
- rayiner 10y ago
  The meaning is pretty obvious considering that the folks who wrote the damn thing had capital punishment for numerous crimes and still practiced branding, public whipping, etc. as punishments. We just don't like the implications of the real meaning and look for ways around it.
  - SmellTheGlove 10y ago
    The text reads >Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. What you're referring to is the original meaning. There are other principles of interpretation in the US judiciary. The Supreme Court has shifted from the original meaning, given that there are some restrictions on capital punishment (mostly based on age and mental handicap). Most of that development has been from the mid-80's to today. However, to further address your point, I don't think the meaning is obvious from the text. In particular, the word "cruel" in relationship to "punishment" is not obvious to a layman.
    - rayiner 10y ago
      If you're reading Darwin's work, you don't look at a 20th century dictionary to figure out what he meant. The question is, what would the phrase "cruel and unusual punishment" have meant to people when those words were written?
      - SmellTheGlove 10y ago
        This is the law, though, not scientific research. Getting it wrong on reading Darwin is relatively inconsequential. Getting the law wrong impacts peoples' lives. That is why you have different theories of constitutional interpretation. It's more than what it means or what it meant, some will delve into should it mean what it meant.
      - lmm 10y ago
        Do you also take the position that the second amendment applies only to arms that were available at the time? A constitution is not a codification of objective facts but of principles and processes for resolving disputes between people. To my mind it seems more likely that "cruel and unusual punishment" means "any punishment cruel and unusual according to community standards" than "this specific list of punishments".
        tptacek 10y ago
        It more or less does apply only to arms that were available at the time. Is there a type of weapon available to the armies of the founders that was not available to individuals at the time of the founders? Because there are all sorts of weapons available to our armies that aren't available to individuals, despite 2A.
        AnimalMuppet 10y ago
        Some private ships had cannons, at least by the time of the War of 1812. I don't think there was anything bigger than cannons at the time. So, yes, private individuals (at least ones wealthy enough to own ships) had access to all the weapons of the day.
  - coldtea 10y ago
    >We just don't like the implications of the real meaning and look for ways around it. Or, you know, the real meaning has not stood the test of time, and we should not hold centuries old texts as holy scriptures, like fundamentalists who try to hold close to the "original" intent? Those guys (always guys) also had slaves and did "cruel and unusual punishments" to them on a whim, for another example...
    - rayiner 10y ago
      You've got it backwards. It's the folks opposing the death penalty,[1] that are arguing the words on the page are so sanctified they empower the unelected judiciary to overturn the results of the democratic process. Given that, it's kinda relevant what those words on the page actually mean. What did people agree to when they committed to letting these words on a page curtail their democratic prerogatives? [1] I oppose the death penalty as it is used today. Making an example of psycho serial murderers is pointless, because it's not like that conduct can be deterred.
      - SmellTheGlove 10y ago
        Are you American? Just curious on your perspective. Those "arguing the words on the page are so sanctified" I take for you to mean are originalists/textualists. Most people in that camp are not against the death penalty. Bigger picture, the words on the page DO overturn the results of the democratic process. The US holds the Constitution as its highest law, and any law implemented (democratic process) cannot conflict. If it does, meaning the (unelected) judiciary interprets the law that way, then it is invalid. But that's viewing checks and balances only one way. The executive and legislature (both democratically elected) also check the judiciary - they appoint the Federal judiciary and confirm, respectively. Those appointed judges may choose to interpret the Constitution in a more modern context, while others may stick to originalist thought. What I think you're missing is that it is the prerogative of the judiciary to choose how to interpret. There is nothing in the Constitution itself that mandates originalism, pragmatism, or anything in between, and given our system of government the only place to specify such a thing would be in the Constitution itself. It wasn't there in the beginning and we've made no such amendment. And we probably wouldn't, because judicial independence is a very important principle.
- coldtea 10y ago
  >I don't like or agree with it, but the legal meaning of the 8th Amendment is not obvious from its text. That might be the first sign that we're getting it wrong, actually. Exactly. Old those BS "needs to be interpreted" Amendments and old laws are really problematic (including the "well-armed militia thing"). Law should be clear, not some divine (or "founding father") decree that gets interpreted according to the whims of those in power.
  - SmellTheGlove 10y ago
    It's bigger than that, though. Me (or you) disagreeing doesn't make us right. A lot of the stability and rule of law in the US is attributed to having a stable constitution that has stood the test of time. On certain issues, its immutability has been bad or inefficient, but in the long run it's helped with our stability. For all of the shit our courts take, we have the most stable, transparent and probably fair (meaning impartial) judiciary in the entire world. A lot of that is driven by the originalist/textualist/pragmatists/intentionalist debate. None of them are entirely right, either. That's the nature of law and trying to achieve the "right" outcome.
  - soylentcola 10y ago
    But as a counterpoint, that room for interpretation, while allowing room for "bad" readings of law is also what allows some space for the same law to be adapted to changing circumstance rather than thrown out entirely. In only a few generations the world (and US society specifically in this case) has changed quite a bit from when this stuff was set down. If it was very specific but tied to the prevailing attitudes and situations of the 1700s or 1800s, it would be like a "lite version" of the folks arguing that we should be following biblical law or sharia law as written hundreds or thousands of years ago. There needs to be at least some room for interpretation and adaptation in order to avoid a system of law that does not reflect the actual people subject to it.
- jomamaxx 10y ago
  Europeans have put a man who mass murdered 90 teenagers in cold blood, in a hotel. He has great meals, internet access, healthcare, video games, internet, porn, he can marry. A music room. Scandinavian justice is a failure. I was at a dinner in Denmark, speaking to this guy next to me for a while. My brother later pointed out this guy had murdered someone just a couple of years ago, served a light sentence and was now in a half-way house. I was revolted. I'd suggest that in many cases - criminals can be readily reintroduced into society without much intervention. Some therapy, the fact they know they are being watched, blocking them from triggers etc. - and they likely won't rescind ... But is it moral to allow someone who murdered your children on the streets without punishment because Scientifically we can establish that they are highly unlikely to kill again? Europe is in some ways morally corrupt, as America is in others. Anders Brevik should be executed, it is the moral thing to do. I would not advocate torture, but if found out someone were torturing him, I would have no sympathy. Contrast that to the American system wherein a lot of people are executed and we know that many of them were innocent. It seems basic justice is difficult to hand out ... As far as 'trial by jury' - I'd rather a trial by a judge - ore better - a panel of judges... because one of them always has an agenda.
  - kiba 10y ago
    Anders Brevik should be executed, it is the moral thing to do. You say Scandinavian justice is morally corrupt. How? Why do I care about a person who's not going to kill someone in the future? If anything, I care about intervening before someone commit a crime so that it won't be too little too late. There are thousand of things to focus our attention and time on that has nothing to do with criminal intent. Cancer and heart attack will cause harm and kill you without any moral intention. These are worth spending money and time on, not some harmless humans. If all humans can be rendered 'scientifically' unable to murder even a fly without attendant system of prison and punishment, why do we care about revenge so much?
  - tim333 10y ago
    You seem upset by the Norwegians treatment of murderers. I see the US murder rate is about 6 times that in Norway. I'm not sure that fits with the US system being better.
themartorana 10y ago
A majority of Americans are still for the death penalty. It was close to the opposite before we ran full-force into "tough on crime", mandatory minimums, 3 strikes laws, the War on Drugs, and so on, and tripled the incarceration rate and population. All of those things ended up being extremely detrimental and set the US back decades, but we're still reeling. http://www.gallup.com/poll/165626/death-penalty-support-lowest-years.aspx http://www.gallup.com/poll/165626/death-penalty-support-lowe... I don't know what it is, but Americans - especially the Bible Belt voting bloc (for lack of more nuanced regional targeting) - feel not only "just" in passing judgement on others, but divinely so, and therefore questioning them is questioning God. It's scary. (It's also the same voting bloc backing Trump. We could chat all day about misappropriated rage and the decline of financial stability and the middle class, but the result of decades of it is where we are now.)
- r_smart 10y ago
  Wait, are you surprised that adherents to Abrahamic religions would be in support of capital punishment? Each of the holy texts are filled with harsh judgments and abusive punishments meted out by god or god's servants. Also your comment about Americans feeling like divine judges comes off as a touch hyperbolic, and if that's your experience you must live near some pretty extreme Christians.
- dsfyu404ed 10y ago
  >especially the Bible Belt voting bloc (for lack of more nuanced regional targeting) It's not just them. Take a look at what reddit has to say about "the Bible Belt voting bloc" People in in homogenous cultures are quick to write off those outside it. The "flyover state trailer trash" who live among like individuals have a hard time recognizing the legitimacy of opinions held by "suburban millennials" but the latter group has just as hard a time recognizing the legitimacy of any opinion held by the former. There was a news story about compus carry at state schools in Texas (IIRC) on reddit a few days ago. It was a perfect example of this. Tons of people saying that the sky is falling with occasional locals saying that the law change just makes the status quo legal. People have a very, very hard time objectively considering things that aren't common in their societal niche aren't.
pc86 10y ago
The 8th amendment specifically states cruel and unusual. I'm not going to search for it at work but I seem to recall an appellate or Supreme Court decision saying essentially that the death penalty is cruel but is common enough that it is not unusual, and therefore does not violate one's Constitutional rights.
coldtea 10y ago
>* Both life sentences (or multi life sentences) and death penalties are seen as cruel and not permitted in most of Europe.* Yeah, but the US is shaped by the Old Testament morals of puritan religious nuts who left Europe...
- jomamaxx 10y ago
  'Progressive Europeans' have Anders Brevik, who mass murdered 90 children, sitting in a hotel room with great food, internet access, video games, porn, girlfriends etc.. And will he eventually be out after is 'non life sentence'? They executed SS Officers for much less. I suggest in some cases the death penalty may be warranted.
  - coldtea 10y ago
    >'Progressive Europeans' have Anders Brevik, who mass murdered 90 children, sitting in a hotel room with great food, internet access, video games, porn, girlfriends etc.. Yeah, so? They are bad because they don't care much for revenge or they didn't punish hard someone who killed many people? As if having him die in some electric chair will bring those people back? If anything, that's even more Christian (in spirit) than the Old Testament "eye for an eye" US mentality. And if anything else, this treatment helps show Brevik for what he is, a lone loony who hurt innocent people -- as opposed to some "martyred" killer in a society that itself hypocritically kills people too. And maybe this mentality is part of the reason why those "progressive Europeans" have way less Anders Breviks, whereas in the US there's one born every minute...
    - jomamaxx 10y ago
      An 'eye for an eye' would imply someone who stole could be stolen from, someone who maimed could he himself be maimed. Executing Brevik is not 'revenge', it is justice. He deserves to be executed. I'm not generally a supporter of capital punishment, but it is blatantly immoral that he should live an almost normal, healthy life after his mass crimes.
      - 10y ago
tzs 10y ago
Life sentences are permitted in most of Europe. What is not permitted are life sentences without the possibility of parole. The typical pattern in most of Europe is that a life sentence means you serve N years (with N being determined at the time of sentencing, either by law or by the court, often from a range of allowed values). After N years, you can apply for review, and may be released if the reviewing body decides that further incarceration serves no legitimate penological interest. If release is denied, at some later time (how "later" is determined varies from country to country), you can try again, and so on until you eventually get released or die. The European Court of Human Rights has an interesting factsheet summarizing their rulings on life sentencing cases from around Europe here: http://www.echr.coe.int/Documents/FS_Life_sentences_ENG.pdf http://www.echr.coe.int/Documents/FS_Life_sentences_ENG.pdf
gozur88 10y ago
Most people in the US don't consider the death penalty cruel and unusual.

SmellTheGlove 10y ago

It's because Europe doesn't interpret the 8th Amendment, the US Supreme Court does. And here, there's a really high bar for cruel and unusual. To the point where as long as it takes place in a prison, it seems to be okay. I don't like or agree with it, but the legal meaning of the 8th Amendment is not obvious from its text. That might be the first sign that we're getting it wrong, actually.

rayiner 10y ago
The meaning is pretty obvious considering that the folks who wrote the damn thing had capital punishment for numerous crimes and still practiced branding, public whipping, etc. as punishments. We just don't like the implications of the real meaning and look for ways around it.
- SmellTheGlove 10y ago
  The text reads >Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. What you're referring to is the original meaning. There are other principles of interpretation in the US judiciary. The Supreme Court has shifted from the original meaning, given that there are some restrictions on capital punishment (mostly based on age and mental handicap). Most of that development has been from the mid-80's to today. However, to further address your point, I don't think the meaning is obvious from the text. In particular, the word "cruel" in relationship to "punishment" is not obvious to a layman.
  - rayiner 10y ago
    If you're reading Darwin's work, you don't look at a 20th century dictionary to figure out what he meant. The question is, what would the phrase "cruel and unusual punishment" have meant to people when those words were written?
    - SmellTheGlove 10y ago
      This is the law, though, not scientific research. Getting it wrong on reading Darwin is relatively inconsequential. Getting the law wrong impacts peoples' lives. That is why you have different theories of constitutional interpretation. It's more than what it means or what it meant, some will delve into should it mean what it meant.
    - lmm 10y ago
      Do you also take the position that the second amendment applies only to arms that were available at the time? A constitution is not a codification of objective facts but of principles and processes for resolving disputes between people. To my mind it seems more likely that "cruel and unusual punishment" means "any punishment cruel and unusual according to community standards" than "this specific list of punishments".
      - tptacek 10y ago
        It more or less does apply only to arms that were available at the time. Is there a type of weapon available to the armies of the founders that was not available to individuals at the time of the founders? Because there are all sorts of weapons available to our armies that aren't available to individuals, despite 2A.
        AnimalMuppet 10y ago
        Some private ships had cannons, at least by the time of the War of 1812. I don't think there was anything bigger than cannons at the time. So, yes, private individuals (at least ones wealthy enough to own ships) had access to all the weapons of the day.
- coldtea 10y ago
  >We just don't like the implications of the real meaning and look for ways around it. Or, you know, the real meaning has not stood the test of time, and we should not hold centuries old texts as holy scriptures, like fundamentalists who try to hold close to the "original" intent? Those guys (always guys) also had slaves and did "cruel and unusual punishments" to them on a whim, for another example...
  - rayiner 10y ago
    You've got it backwards. It's the folks opposing the death penalty,[1] that are arguing the words on the page are so sanctified they empower the unelected judiciary to overturn the results of the democratic process. Given that, it's kinda relevant what those words on the page actually mean. What did people agree to when they committed to letting these words on a page curtail their democratic prerogatives? [1] I oppose the death penalty as it is used today. Making an example of psycho serial murderers is pointless, because it's not like that conduct can be deterred.
    - SmellTheGlove 10y ago
      Are you American? Just curious on your perspective. Those "arguing the words on the page are so sanctified" I take for you to mean are originalists/textualists. Most people in that camp are not against the death penalty. Bigger picture, the words on the page DO overturn the results of the democratic process. The US holds the Constitution as its highest law, and any law implemented (democratic process) cannot conflict. If it does, meaning the (unelected) judiciary interprets the law that way, then it is invalid. But that's viewing checks and balances only one way. The executive and legislature (both democratically elected) also check the judiciary - they appoint the Federal judiciary and confirm, respectively. Those appointed judges may choose to interpret the Constitution in a more modern context, while others may stick to originalist thought. What I think you're missing is that it is the prerogative of the judiciary to choose how to interpret. There is nothing in the Constitution itself that mandates originalism, pragmatism, or anything in between, and given our system of government the only place to specify such a thing would be in the Constitution itself. It wasn't there in the beginning and we've made no such amendment. And we probably wouldn't, because judicial independence is a very important principle.
coldtea 10y ago
>I don't like or agree with it, but the legal meaning of the 8th Amendment is not obvious from its text. That might be the first sign that we're getting it wrong, actually. Exactly. Old those BS "needs to be interpreted" Amendments and old laws are really problematic (including the "well-armed militia thing"). Law should be clear, not some divine (or "founding father") decree that gets interpreted according to the whims of those in power.
- SmellTheGlove 10y ago
  It's bigger than that, though. Me (or you) disagreeing doesn't make us right. A lot of the stability and rule of law in the US is attributed to having a stable constitution that has stood the test of time. On certain issues, its immutability has been bad or inefficient, but in the long run it's helped with our stability. For all of the shit our courts take, we have the most stable, transparent and probably fair (meaning impartial) judiciary in the entire world. A lot of that is driven by the originalist/textualist/pragmatists/intentionalist debate. None of them are entirely right, either. That's the nature of law and trying to achieve the "right" outcome.
- soylentcola 10y ago
  But as a counterpoint, that room for interpretation, while allowing room for "bad" readings of law is also what allows some space for the same law to be adapted to changing circumstance rather than thrown out entirely. In only a few generations the world (and US society specifically in this case) has changed quite a bit from when this stuff was set down. If it was very specific but tied to the prevailing attitudes and situations of the 1700s or 1800s, it would be like a "lite version" of the folks arguing that we should be following biblical law or sharia law as written hundreds or thousands of years ago. There needs to be at least some room for interpretation and adaptation in order to avoid a system of law that does not reflect the actual people subject to it.
jomamaxx 10y ago
Europeans have put a man who mass murdered 90 teenagers in cold blood, in a hotel. He has great meals, internet access, healthcare, video games, internet, porn, he can marry. A music room. Scandinavian justice is a failure. I was at a dinner in Denmark, speaking to this guy next to me for a while. My brother later pointed out this guy had murdered someone just a couple of years ago, served a light sentence and was now in a half-way house. I was revolted. I'd suggest that in many cases - criminals can be readily reintroduced into society without much intervention. Some therapy, the fact they know they are being watched, blocking them from triggers etc. - and they likely won't rescind ... But is it moral to allow someone who murdered your children on the streets without punishment because Scientifically we can establish that they are highly unlikely to kill again? Europe is in some ways morally corrupt, as America is in others. Anders Brevik should be executed, it is the moral thing to do. I would not advocate torture, but if found out someone were torturing him, I would have no sympathy. Contrast that to the American system wherein a lot of people are executed and we know that many of them were innocent. It seems basic justice is difficult to hand out ... As far as 'trial by jury' - I'd rather a trial by a judge - ore better - a panel of judges... because one of them always has an agenda.
- kiba 10y ago
  Anders Brevik should be executed, it is the moral thing to do. You say Scandinavian justice is morally corrupt. How? Why do I care about a person who's not going to kill someone in the future? If anything, I care about intervening before someone commit a crime so that it won't be too little too late. There are thousand of things to focus our attention and time on that has nothing to do with criminal intent. Cancer and heart attack will cause harm and kill you without any moral intention. These are worth spending money and time on, not some harmless humans. If all humans can be rendered 'scientifically' unable to murder even a fly without attendant system of prison and punishment, why do we care about revenge so much?
- tim333 10y ago
  You seem upset by the Norwegians treatment of murderers. I see the US murder rate is about 6 times that in Norway. I'm not sure that fits with the US system being better.

themartorana 10y ago

A majority of Americans are still for the death penalty. It was close to the opposite before we ran full-force into "tough on crime", mandatory minimums, 3 strikes laws, the War on Drugs, and so on, and tripled the incarceration rate and population. All of those things ended up being extremely detrimental and set the US back decades, but we're still reeling. http://www.gallup.com/poll/165626/death-penalty-support-lowest-years.aspx http://www.gallup.com/poll/165626/death-penalty-support-lowe... I don't know what it is, but Americans - especially the Bible Belt voting bloc (for lack of more nuanced regional targeting) - feel not only "just" in passing judgement on others, but divinely so, and therefore questioning them is questioning God. It's scary. (It's also the same voting bloc backing Trump. We could chat all day about misappropriated rage and the decline of financial stability and the middle class, but the result of decades of it is where we are now.)

r_smart 10y ago
Wait, are you surprised that adherents to Abrahamic religions would be in support of capital punishment? Each of the holy texts are filled with harsh judgments and abusive punishments meted out by god or god's servants. Also your comment about Americans feeling like divine judges comes off as a touch hyperbolic, and if that's your experience you must live near some pretty extreme Christians.
dsfyu404ed 10y ago
>especially the Bible Belt voting bloc (for lack of more nuanced regional targeting) It's not just them. Take a look at what reddit has to say about "the Bible Belt voting bloc" People in in homogenous cultures are quick to write off those outside it. The "flyover state trailer trash" who live among like individuals have a hard time recognizing the legitimacy of opinions held by "suburban millennials" but the latter group has just as hard a time recognizing the legitimacy of any opinion held by the former. There was a news story about compus carry at state schools in Texas (IIRC) on reddit a few days ago. It was a perfect example of this. Tons of people saying that the sky is falling with occasional locals saying that the law change just makes the status quo legal. People have a very, very hard time objectively considering things that aren't common in their societal niche aren't.

pc86 10y ago

The 8th amendment specifically states cruel and unusual. I'm not going to search for it at work but I seem to recall an appellate or Supreme Court decision saying essentially that the death penalty is cruel but is common enough that it is not unusual, and therefore does not violate one's Constitutional rights.

coldtea 10y ago

>* Both life sentences (or multi life sentences) and death penalties are seen as cruel and not permitted in most of Europe.* Yeah, but the US is shaped by the Old Testament morals of puritan religious nuts who left Europe...

jomamaxx 10y ago
'Progressive Europeans' have Anders Brevik, who mass murdered 90 children, sitting in a hotel room with great food, internet access, video games, porn, girlfriends etc.. And will he eventually be out after is 'non life sentence'? They executed SS Officers for much less. I suggest in some cases the death penalty may be warranted.
- coldtea 10y ago
  >'Progressive Europeans' have Anders Brevik, who mass murdered 90 children, sitting in a hotel room with great food, internet access, video games, porn, girlfriends etc.. Yeah, so? They are bad because they don't care much for revenge or they didn't punish hard someone who killed many people? As if having him die in some electric chair will bring those people back? If anything, that's even more Christian (in spirit) than the Old Testament "eye for an eye" US mentality. And if anything else, this treatment helps show Brevik for what he is, a lone loony who hurt innocent people -- as opposed to some "martyred" killer in a society that itself hypocritically kills people too. And maybe this mentality is part of the reason why those "progressive Europeans" have way less Anders Breviks, whereas in the US there's one born every minute...
  - jomamaxx 10y ago
    An 'eye for an eye' would imply someone who stole could be stolen from, someone who maimed could he himself be maimed. Executing Brevik is not 'revenge', it is justice. He deserves to be executed. I'm not generally a supporter of capital punishment, but it is blatantly immoral that he should live an almost normal, healthy life after his mass crimes.
    - 10y ago

tzs 10y ago

Life sentences are permitted in most of Europe. What is not permitted are life sentences without the possibility of parole. The typical pattern in most of Europe is that a life sentence means you serve N years (with N being determined at the time of sentencing, either by law or by the court, often from a range of allowed values). After N years, you can apply for review, and may be released if the reviewing body decides that further incarceration serves no legitimate penological interest. If release is denied, at some later time (how "later" is determined varies from country to country), you can try again, and so on until you eventually get released or die. The European Court of Human Rights has an interesting factsheet summarizing their rulings on life sentencing cases from around Europe here: http://www.echr.coe.int/Documents/FS_Life_sentences_ENG.pdf http://www.echr.coe.int/Documents/FS_Life_sentences_ENG.pdf

gozur88 10y ago

Most people in the US don't consider the death penalty cruel and unusual.