Cruel and unusual punishment (why not?)

[Dak]

Why should we not use cruel and unusual punishment?

 

surely all punishment is, by its very definition, cruel; locking someone up or putting them to death is hardly a nice thing to do.

 

Why the big no-no on having unusual punishment?

 

I can see the point of not, for example, not cutting theives hands off, but a total ban on imaginative punishments...

 

The reason that i started thinking about this, is that i saw a program on the telly the other day about the illigal trade in unfit meat. In ye olde days, if a food-vender was suspected of selling rotten meat, he would be forsed to eat the meat that he was selling -- a quite fitting punishment, with 0% chance for miscarage (if the meat was rotten, he will get ill; if not, he will be fine) but im sure this would count as 'unusual' punishment.

 

locking people in stocks and pelting them with soft fruit also strikes me as arguably a suitable punishment for social crimes, eg noisy neighbours, because 1/ it would punish people in proportion to how, in the above case, annoyingly noisy they had been (the more they had annoyed their neighbour, the more theyd get pelted by fruit), and 2/it is a very visable way of showing that justis is being done, and so presumably would act as a good deterent.

 

also, certain punishments which could arguably be justified, eg castrating repeat rapists, would be disallowed by the ban on "no cruel and unusual punishment".

 

 

Id like to make it clear at this point that im not actually arguing for or condoning any of the above punishments; nor am i actually suggesting that we reintroduce imaginatively unusual punishments.

 

I was just wondering why the above are automatically not even considered when developing a punishment for a crime?

 

So more of a 'discuss' thingy.

[Pangloss]

Well one of the areas you may wish to explore with this is the idea of justice not being an act of retribution, but rather an act of redress. There are a number of issues surrounding this thorny issue, such as whether or not you really want the state involved in making moral judgements. The idea that punishment acts as a deterent is seen here as more of a secondary effect -- the primary effect of law being to simply enforce contracts by providing a method of redress for one's grievances.

 

There are a lot of pros and cons and ins and outs here, but that might be enough to get things started.

[Dak]

The idea that punishment acts as a deterent is seen here as more of a secondary effect -- the primary effect of law being to simply enforce contracts by providing a method of redress for one's grievances.

 

I thought it was the other way round... i thought that the primary concern of the legal system (at least in 'civilised' societys) was to act as a deterrant, by essentially saying "look, potential wrongdoers: this is what'll happen to you if you do x".

 

Anyway, unusual punishments can act as a redress and as a deterrant.

 

such as whether or not you really want the state involved in making moral judgements

 

Im not quite sure what you mean here: surely the govournment makes moral desisions quite oftern by illegalising certain things like prostitution and murder?

 

=================

 

this is completely irrelivent to this thread, but i just remembered that i never got around to this before, and the relevent threads have been locked: my appologies to all for the thread-distroying arguments i had with revprez.

[In My Memory]

Why should we not use cruel and unusual punishment?

 

surely all punishment is' date=' by its very definition, cruel; locking someone up or putting them to death is hardly a nice thing to do.[/quote']

It has a two-fold appeal:

 

1) That punishments are not excessive or disproportionate with the crime. (The brings to mind the quote by Aristotle "justice consists of treating equals equally and unequals unequally but in proportion to their relative differences). There is a lot of relevant authority I could appeal to who would argue that equal and proportionate application of the law is an essential component to any kind of justice. This is your basic "proportionate application of justice" axiom.

 

2) It logically follows from that axiom that if there are more lenient ways to achieve the same ends in corrective justice (i.e. coerce a person not to commit more crimes), then by definition a harsher punishment would be less proportionate than a lenient punishment. Therefore, to distribute harsher punishments when there are obviously more lenient alternatives is antithetical to the basic meaning of "justice".

 

Besides, do we really need to go around cutting off peoples ears when we could just jail them 2 - 3 years?

 

 

Pangloss,

 

Well one of the areas you may wish to explore with this is the idea of justice not being an act of retribution, but rather an act of redress

Retributive justice is all about correcting the balance between certain injustices. However, retributive justice theories dont make sense in light of the fact we punish certain crimes like prostitution, littering, tax evasion, reckless endangerment of your own life, etc which exist apart from being an actual injustice upon anyone.

 

But lets not get started on the differences between retributive justice and corrective justice

[Dak]

thats more against the 'cruel' part than the 'unusual' part; why would jailing someone be more lenient or less disproportionate than pelting someone with rottern tomatoes; or a fine more lenient/less disproportionate than parading them through the streets holding a sighn with 'litter-bug' writtern on it?

 

actually, i think that unusual punishments could be tailored to be (in some cases) directly proportional to the crime (as in the rottern meat example).

 

come to think of it, why is it ok to put someones name on a publically accesable register or publish their conviction in the local paper, but not parade them around the streets with a sighn? It would achieve the same end.

 

Id like to make it clear at this point that im not actually arguing for or condoning any of the above punishments; nor am i actually suggesting that we reintroduce imaginatively unusual punishments.

 

actually, id like to change that to "im not arguing for or condoning anything that i sujjest within this thread; merely testing the idea that unusual punishment should be abstained from.

 

so if i mention lopping bits of people off, or allowing ex-rapists to rape rapists as a punishment, im just speculating.

[YT2095]

the only problem I can see is with the definition of unusual, it`s a little too flimsy, because it`s only a matter or time and usage that the UNusual, becomes the Usual and then common place.

[ku]

Gary Becker, a Novel prize winner, says that fines are one of the best punishments. Fines are good because it involves only transfer of wealth and involves negligible costs, unlike jail, which costs very much for the government.

[the tree]

I'd say the best punishment in some cases would be a direct service to the victim.

 

e.g. a buglar should return the stolen property (and possibly pay for it's repair) and then do some chores for the victim to make up for the distress that the burglary caused.

 

Of course this would be impossible in the case of murder and inapropriate in the case of rape but with stuff like buglary, vandalism and antisocial-behaviour I think it'd make a lot of sense.

[-Demosthenes-]

Gary Becker, a Novel prize winner, says that fines are one of the best punishments. Fines are good because it involves only transfer of wealth and involves negligible costs, unlike jail, which costs very much for the government.

And people who don't have the money for a fine?

[Thomas Kirby]

I think that the use of any form of punishment has created a false sense that something has been done about a given social problem without providing any real solutions.

[AzurePhoenix]

People are just too reluctant to get their hands dirty and soil their spotless political position or interfere with make-belief human rights. Go ahead! Chop off the little thief's hand!! He deserves no better....

[Dak]

there are arguments for chopping off bits of thieves, rapists, paedophiles, etc... why dont we even concider doing it?

 

i know there are reasons why we dont, but we dont even concider it because its 'cruel and unusual'.

 

why?

[In My Memory]

Dak,

 

thats more against the 'cruel' part than the 'unusual' part; why would jailing someone be more lenient or less disproportionate than pelting someone with rottern tomatoes; or a fine more lenient/less disproportionate than parading them through the streets holding a sighn with 'litter-bug' writtern on it?

 

actually' date=' i think that unusual punishments could be tailored to be (in some cases) [b']directly[/b] proportional to the crime (as in the rottern meat example).

 

come to think of it, why is it ok to put someones name on a publically accesable register or publish their conviction in the local paper, but not parade them around the streets with a sighn? It would achieve the same end.

A few different reasons I can think of for prohibiting the unusual part:

 

1) Punitive or rehabilitative value - most people think of unusual punishment in the form of some kind of public humiliation (such as tarring and feathering), but it isnt obvious if these things have any rehabilitative value.

 

2) Equal treatment - very very important in law is that everyone be treated fairly and equally. Allowing for unusual punishments introduces an element where people are treated differently for same crime, for instance someone might be branded with a scarlet A, another person could be forced to eat rotten food, someone else could tarred and feathered, all for committing the same offense. (Its practically impossible tailor all of these different punishments to fit the same crime - or at least I've never come across a way to measure somethings "punishing value".) Philosophically, equal treatment is an important component to what we think of as justice.

 

3) Due process - allowing for unusual punishment makes it very easy to discriminate against certain groups (almost always, the groups discriminated against will be racial minorities, religious minorities, gays, and atheists). For instance, it isnt difficult to imagine at all that a particular judge could choose to simply fine members of the church, but choose to severely humiliate non-members as he sees fit.

 

4) Separation of powers - the things that define crimes and punishments for these crimes are made by Congress, not by judges. Giving judges the power be creative in prescribing punishment is simply too much power in their hands.

[Dak]

1) Punitive or rehabilitative value - most people think of unusual punishment in the form of some kind of public humiliation (such as tarring and feathering), but it isnt obvious if these things have any rehabilitative value.

 

ok, but we could research their rehabilitative potential.

 

2) Equal treatment - very very important in law is that everyone be treated fairly and equally. Allowing for unusual punishments introduces an element where people are treated differently for same crime, for instance someone might be branded with a scarlet A, another person could be forced to eat rotten food, someone else could tarred and feathered, all for committing the same offense. (Its practically impossible tailor all of these different punishments to fit a crime - or at least I've never come across a way to measure.) Philosophically, equal treatment is an important component to what we think of as justice.

 

[...]

 

4) Separation of powers - the things that define crimes and punishments for these crimes are made by Congress, not by judges. Giving judges the power be creative in prescribing punishment is simply too much power in their hands.

 

 

 

what about if a crime had a consistant unusual punishment? like, all petty thefts involved a tar-and-feathering, so that all petty theifs could be punished the same (eg, the judge doesnt have the freedom to make up his own punishment in each individual case, but can apply a congress-determined unusual punishment)?

 

3) Due process - its very easy to discriminate against certain groups (almost always, the groups discriminated against will be racial minorities, religious minorities, gays, and atheists). For instance, it isnt difficult to imagine at all that a particular judge could choose to simply fine members of the church, but choose to severely humiliate non-members as he sees fit.

 

lots of crimes now (mainly traffic offenses) are punishable by fine or inprisonment, so id theres already safeguards inplace to stop that, lest a judge fines members of the church and inprisons all others.

 

all good points, but none which conclusively debunk the idea of using unusual punishment imo.

[In My Memory]

what about if a crime had a consistant unusual punishment?

That's what we call a paradox

 

all good points, but none which conclusively debunk the idea of using unusual punishment imo.

Of course!

 

There could be other reasons, but I've never I've never given thought to the "unusual" part until this thread