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Yes, and? They were state actors inflicting physical pain against citizens, and the Supreme Court unambiguously said the 8th Amendment does not apply outside criminal contexts. Period. Now, if you'll read the opinion, [...]

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If you just read the first few sentences maybe Taken in context, the dicta in section III of the opinion explains the court's reasoning why "the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools." If you read the whole section it even cites other Supreme Court cases where they applied the 8th amendment to areas other than direct punishments for crime. The dicta also specifically mentions that "[the framers] feared the imposition of torture and other cruel punishments not only by judges acting beyond their lawful authority, but also by legislatures engaged in making the laws by which judicial authority would be measured." Weems v. United States, 217 U. S. 349, 217 U. S. 371-373 (1910).

The assertion that torture to "extract information" is not punishment is absurd... it is clearly punishment for failure to share information. It is also a criminal-law function of government. That torture is also a violation of due process is beside the point.



It was a close decision, 5-4 in favor of paddling, so lets take a look at section IA of the dissent:

The Eighth Amendment places a flat prohibition against the infliction of "cruel and unusual punishments." This reflects a societal judgment that there are some punishments that are so barbaric and inhumane that we will not permit them to be imposed on anyone, no matter how opprobrious the offense. See Robinson v. California, 370 U. S. 660, 370 U. S. 676 (1962) (Douglas, J., concurring). If there are some punishments that are so barbaric that they may not be imposed for the commission of crimes, designated by our social system as the most thoroughly reprehensible acts an individual can commit, then, a fortiori, similar punishments may not be imposed on persons for less culpable acts, such as breaches of school discipline. Thus, if it is constitutionally impermissible to cut off someone's ear for the commission of murder, it must be unconstitutional to cut off a child's ear for being late to class. [Footnote 2/1] Although there were no ears cut off in this case, the record reveals beatings so severe that, if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster.

Nevertheless, the majority holds that the Eighth Amendment "was designed to protect [only] those convicted of crimes," ante at 430 U. S. 664, relying on a vague and inconclusive recitation of the history of the Amendment. Yet the constitutional prohibition is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution. Certainly, the fact that the Framers did not choose to insert the word "criminal" into the language of the Eighth Amendment is strong evidence that the Amendment was designed to prohibit all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed.

No one can deny that spanking of school children is "punishment" under any reasonable reading of the word, for the similarities between spanking in public schools and other forms of punishment are too obvious to ignore. Like other forms of punishment, spanking of school children involves an institutionalized response to the violation of some official rule or regulation proscribing certain conduct and is imposed for the purpose of rehabilitating the offender, deterring the offender and others like him from committing the violation in the future, and inflicting some measure of social retribution for the harm that has been done.

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Originally posted by AlexLayman:
It was a close decision, 5-4 in favor of paddling, so lets take a look at section IA of the dissent:

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Now that's cute. "My side lost, but only barely, so let's go by what my side said because it backs me up."

Seriously, though, while parts of Ingraham may have relevance to this debate in it's discussion of the origin and development of the concept of cruel and unusual punishment, the case itself said spanking-as-discipline does not invoke 8th A issues. It's not really on point to this discussion (which I guess is why I keep reading "dicta says", a sure sign of trouble up ahead.)

Even if SCOTUS had determined that spanking in that circumstance was a form of punishment protected by the 8th A, the practice still involves (what I'll generously call) a post-adjudicative use of force, not a pre-adjudicative use of force. In other words, the kids were getting their licks in response to wrongdoing -- they weren't being swatted in an effort to get them to rat out when the next Senior Skip Day is going to be held. And for 8th A. jurisprudence, that makes all the difference. Both pre- and post-adjudicative misconduct might be criminal, and both might even be unconstitutional, but only the latter violates the 8th A. That doesn't justify or excuse either type of misconduct, it just makes sure each is analyzed in the proper framework.

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Now that's cute. "My side lost, but only barely, so let's go by what my side said because it backs me up."

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Hey now, remember that the 8th is subject to "evolving standards" of decency...

Graham v. Connor, 490 U.S. 386 (1989)(6:3:0)

Note, Stevens was in the majority. No one dissented.

[This message was edited by Fresno Bob on 05-07-08 at .]

Scott, if your office has windows, remember that penumbras can "flow" or "radiate" in. Maybe keep the blinds closed?

So what's next? Any imprisonment is cruel and unusual? Probation? Community service? Hey, why punish offenders at all? And with all the states reconsidering the death penalty because of cost, think how much cheaper not having a criminal justice system would be - no employees, no jails, no record-keeping... *grumble* Justice Thomas gets it right.

From the article:

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Stevens noted that during a third penalty hearing, five members of a state advisory jury recommended against lethal injection, but the court again imposed death.

The circumstances of his current imprisonment, said Stevens, no longer justify such a sentence.

"As he awaits execution, petitioner has endured especially severe conditions of confinement," said Stevens, "spending up to 23 hours per day in isolation in a 6- by 9-foot cell. Two death warrants have been signed against him and stayed only shortly before he was scheduled to die. The dehumanizing effects of such treatment are undeniable."

But Thomas said all such inmates are subjected to a "restricted confinement" because of the security risks they pose. And the prisoner had only himself to blame for his prolonged imprisonment on death row.

Quoting his conclusions from a similar 1999 capital case, Thomas said, "I remain unaware of any support in the American constitutional tradition of this Court's precedence for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed."

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Defendant alleges three years on death row is cruel and unusual

I truly feel bad for the torment that he's gone through having "death warrants signed against him and only stayed at the last minute". And I have a great solution -- stop filing all the last-minute appeals, and let the death warrant be carried out the first time it's signed!

I�ve paddled my kids on a regular basis over the years and it always tortured me more than it tortured them. If one got it, then the others got it for being with him or her. It was therapy and as far as I know there is no constitutional prohibition against therapy. It always made me feel much better.

The're getting even though...I had to go to a "Killers" concert in Austin a couple of weeks ago. Now where is a constitutional prohabition when you need it?

Its always best to rember that "Red" is for positive when discussing 8th Amendment topics.