Cruel and UnusualThe Eighth Amendment

The eighth amendment of our United States Constitution reads; “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  I assert that not only do we systemically and routinely violate the 8th amendment, often we see the cruel and unusual as normal, an expected circumstance.  Cruel and unusual has become normalized in our society in far too many ways for my liking.

The first issue with the 8th is the choice of language, it is not exactly precise.  For instance, what is excessive?  What is truly excessive for the wealthy?  What is it for the poor?  Thus, the determination of what bail is excessive is very pliable indeed, giving justices all sorts of discretion.

It is the cruel and unusual language which I find of most import, and it is equally imprecise.  How do we define cruel?  A dictionary defines cruel as “willfully causing pain and suffering to others or feeling no concern about it”.  Most often courts fail to find cruelty in the justice system or in our overarching laws by leaning heavily upon the adage “willfully”, whereas I am more concerned with the latter, “feeling no concern about it”.

A great many policies and laws cause suffering, but the government asserts it is not “willful” and therefore not cruel by design.  I take issue with that position.  Take on point, the death penalty.  To discuss the death penalty, we really need to grasp death itself.  What is the most merciful death?  What causes the dying person the least pain and physical torment?

In my view something akin to a sudden, unexpected brain aneurism, where death is so sudden the dying has no chance to suffer pain, and no chance to suffer psychologically due to fear of impending death.  None of our execution methods deal with creating a fear of death, but rather seek a speedy process.  This is exacerbated by our own appeals process which may drag on for up to 2 decades, in order to ensure we are not executing an innocent.

So, a killer is sentenced to death, but rather than a quick summary execution, we drag that out over years.  Such that the convicted killer, innocent or guilty, is always waiting with baited breath for an execution date.  Often times these are paused and set back due to court filings.  In this manner the killer thinks he is being executed Tuesday, but a stay comes in, only to be cancelled, only to be reinstituted by an appeals court, and so on, for up to two decades.

In my view this endless on again, off for now, on again threat of imminent death has to inflict PTSD on those who are incarcerated for murder. No one was sentenced to PTSD.  No one is ever sentenced to an endless cycle of fear, for that would be a cruel and unusual punishment.  Yet the courts all ignore the “feeling no concern about it” aspect of the definition, as they show no concern about it.

Maybe you think “So what, they are a killer”, but the reality is innocent people are convicted all the time.  That is not punishment, it is vengeance, perhaps an unjust vengeance upon an innocent convict.

Then there is Prison rape.  No one is ever sentenced to be raped, but prison rape is so common, so understood by Americans, that it is a threat in almost every cop TV show and movie.  The detectives are always warning the suspect, “just wait till you’re in with Bubba, he will make short work of you, you will be his wife in no time.”  It has been a common understanding all my life and is so entrenched it was spoofed by “The Boondocks”, wherein a black lawyer has PTSD over the very notion of prison rape.

I think the threat of rape is a cruel tactic for police to use, a crime to anyone suffering it, and all but ignored by the prisons.  That is why it is so commonly understood as an issue in prison, as if we believe “that is just how prisons are” and take no responsibility for those subjected to this very real threat. This is despite the fact none of them, neither rapists nor victims, were sentenced to rape or be raped.

That seems like it very much meets the standard of cruel and unusual, but we make light of it in comedy and do nothing about the reality, allowing it to remain a reality.  This certainly meets the second cruel criteria, “or feeling no concern about it”.  If we had been concerned about prison rape, we would have done something long ago.

Prisons, being overpopulated and understaffed, often work to keep the prisoners at each other’s throats as a method of control.  This is why they allow gangs to exist, even as they claim they want to end them.  Prisoners, innocent or guilty, entering large jails or prison are often forced to join a gang for their own safety.  They are forced by the situation to side with one group or another and often these groups are gangs.  So if you are a white guy, innocent of the crime but in a big jail, you may well be situationally forced to join a white nationalist gang in order to have protection from the other gangs, which almost always break down upon racial lines.

No one was ever sentenced to become a gang member and adopt a gang’s morality and ideology in order to survive.  Again, they may not have been sentenced to gang membership, but we are “feeling no concern about it”.

Slavery is both cruel and unusual, but it did not end as you were taught with the end of the Civil War and the addition of the 13th amendment.  “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States “the 13th amendment. According to our constitution, all criminal prisoners are effectively slaves.  Prisoners are forced to work or suffer the consequences of solitary or a lengthening of sentence.  A new convict slavery has been around for all of our lives, and we ignore it, “feeling no concern about it”.

Now comes a most egregious item of the cruel and unusual, the revocation of Roe V Wade.  In this we see the court take an originalist tact.  As an originalist the justices want to interpret everything based on the world as it was, when it was written.  The diverse and extreme changes to our existing reality are not open for consideration, since the constitution did not mention abortion, the court should have no opinion on it, the states should legislate it.

In one fell swoop, the Supreme Court stripped every woman under 50 of a constitutional right they have had all their lives, whether they used it or not.  Now a victim of rape or incest, even a child victim, can be made in some states to carry the result of that rape to term, to protect the rapist’s progeny.  That is both cruel and unusual, by both standards. It willfully causes pain and suffering to women and children and the justices felt no concern about it.  Instead, they advocate for the rapist’s progeny.

Now that Roe has been overturned, we have become a Cruel and Unusual nation and I am ashamed of what the nation I served has become and is becoming.  We had been a nation where women had the liberty to govern their own uterus, but now the nanny red state has stepped in and shoved their Catholic beliefs down all our throats.  The liberty and Body integrity of every woman has been stripped by old Catholic men, forcing all women to bend to their command because they do not like the reality that some women choose abortion.  Frankly, in a society which values liberty, “the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behavior, or political views”, we just ended it for half the population.  Women are not free from oppressive restrictions imposed by State authorities upon their way of life and behavior.

The decision also ignores the first amendment, in that the religious liberty of Hebrews and others is infringed by the decision, nationwide. In Judaism the life of the mother is of merit and takes precedent. Without the mother any prospective infant might well starve. In their religious view the life of the mother and child are intertwined during pregnancy as the woman is a pregnant female and only becomes a mother after birth.

The Hebrew people consider the life of the woman first, and the potential life of the fetus as part and parcel of the pregnant woman’s life, which it is. During pregnancy the woman and fetus are inseparable, we even labeled that separation birth. A fetus becomes an infant the instant it is born, until then the fetus is part and parcel of the woman. Judaism understands and respects that, the “Supreme” court did not, making it a Catholic ruling against Judaism and unconstitutional in my view.

Ending Roe was a headshot to the American ideal of personal and religious liberty, and it looks like that injudicious “Supreme” court is reloading.

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