Question About DP Alternative

[Dave]

Hi There,
I am pretty much on the fence about the DP, so i decided to do a (big) paper on the subject for a class. After _tons_ of research, I have still not decided what my stance is. I wondered if I might get reaction to a couple of things for clarity.

I apologize if this stuff has come up before, this is a new debate for me. I'll just ask about one thing first.

I have read Beccaria's writing about capital punishment, and I think he raised some great points. The first I'd like to approach is the idea that death is not as good a deterrent for crime as a long, grueling incarceration. Here's what he says:(pardon typos, I couldn't cut and paste this stuff so I am typing with the book in my lap - For the youngsters, a book is paper all stuck together with words on it. ;-)

It is not the intensity of punishment that has the greatest effect on human spirit, but its duration, for our sensibility is more easily and more permanently affected by slight but repeated impressions than by powerful but momentary action.

The sway of habit is universal over every sentient being; as man speaks and walks and satisfies his needs by its aid, so the ideas of morality come to be stamped upon the mind only by long and repeated impressions. It is not the terrible yet momentary spectacle of the death of a wretch, but the long and painful example of a man deprived of liberty, who, having become a beast of burden, recompenses with his labors the society he has offended, which is the strongest curb against crimes.

That efficacious idea - efficatious, because very often repeated to ourselves - "I myself shall be reduced to so long and miserable a condition if i commit a similar misdeed" is farmore potent than the idea of death, which men envision always at an obscure distance.

This is transcribed from Beccaria's On Crimes and Punishments, translated by Henry Paolucci and published by Macmillan PC. I added some line breaks to make it easier to read.

Anyhoo, let me know what you think of the idea that the long, hard-labor type life sentence would ask a greater deterrent than executions.

Dave

[Dave]

I noticed after more reading that this subject is being discussed elsewhere. I will leave my post up so that the Beccaria quote is available.

I also think that there is a subtle difference with this position as opposed to the Life W/Out Parole stance. This calls for a sentence of gainful (for the state, the victim's family perhaps) labor over a lifetime, fo rit to be harsh and relentless, and for it to be served in the eye of the public.

I'd still welcome comments,
Dave

[Donnie]

Dave said:

I have read Beccaria's writing about capital punishment, and I think he raised some great points. The first I'd like to approach is the idea that death is not as good a deterrent for crime as a long, grueling incarceration.

However, a long grueling incarceration is not possible. Even a long incarceration is becoming less likely.

[gman]

Dave said:

I noticed after more reading that this subject is being discussed elsewhere. I will leave my post up so that the Beccaria quote is available.

I also think that there is a subtle difference with this position as opposed to the Life W/Out Parole stance. This calls for a sentence of gainful (for the state, the victim's family perhaps) labor over a lifetime, fo rit to be harsh and relentless, and for it to be served in the eye of the public.

I'd still welcome comments,
Dave

They are several recent discussions concerning this on the main board.
However, to summarise some replies to this argument.
1/ At present the DP is very inefficient. Any debate comparing the deterrent effect of the DP versus LWOP must acknowledge that if the DP was enforced more readily, it is possible that the deterrent effect would be far greater than at present.
2/ Where there is hope there is less deterrent. At any time during a LWOP sentence the inmate may get a reprieve, it may be a small chance, but the chance is always there. If an inmate is executed, his chances of release diminish to zero. Therefore, the deterrent effect of the DP should be higher than LWOP.
3/ Proving any LWOP sentence is genuine would take a long time. How long would it take before the public and criminals alike believed LWOP really meant LWOP? 20 years? 40? 100? How many 18 years olds would have to die in prison before there was trust in the system? A system that could still change at any time? On the other hand, execute %99 of all murderers in less than 2 years and you would find out very quickly if the DP was an effective deterrent. Abolishonist's should take up this challenge if the truly and honestly believe the DP has little or no deterrent value.
4/ A change in behavior (deterrent) may well come from 'long and repeated impressions', however what is more likely to happen is that LWOP'ers will be forgotten. In fact, this is a current 'Anti' argument ; that it is better to lock killers away and forget them, rather than give them the attention of an execution. Even if this argument is valid, how do you convey it to the general public in a practical and effective manner? Besides, if 'long repeated impressions' is the way to go, what could make more of an impression than 10 executions a day?

Regards.


edit : for speeling.

[beej76]

Dave said:

Hi There,
I am pretty much on the fence about the DP, so i decided to do a (big) paper on the subject for a class. After _tons_ of research, I have still not decided what my stance is. I wondered if I might get reaction to a couple of things for clarity.

I apologize if this stuff has come up before, this is a new debate for me. I'll just ask about one thing first.

I have read Beccaria's writing about capital punishment, and I think he raised some great points. The first I'd like to approach is the idea that death is not as good a deterrent for crime as a long, grueling incarceration. Here's what he says:(pardon typos, I couldn't cut and paste this stuff so I am typing with the book in my lap - For the youngsters, a book is paper all stuck together with words on it. ;-)

It is not the intensity of punishment that has the greatest effect on human spirit, but its duration, for our sensibility is more easily and more permanently affected by slight but repeated impressions than by powerful but momentary action.

The sway of habit is universal over every sentient being; as man speaks and walks and satisfies his needs by its aid, so the ideas of morality come to be stamped upon the mind only by long and repeated impressions. It is not the terrible yet momentary spectacle of the death of a wretch, but the long and painful example of a man deprived of liberty, who, having become a beast of burden, recompenses with his labors the society he has offended, which is the strongest curb against crimes.

That efficacious idea - efficatious, because very often repeated to ourselves - "I myself shall be reduced to so long and miserable a condition if i commit a similar misdeed" is farmore potent than the idea of death, which men envision always at an obscure distance.

This is transcribed from Beccaria's On Crimes and Punishments, translated by Henry Paolucci and published by Macmillan PC. I added some line breaks to make it easier to read.

Anyhoo, let me know what you think of the idea that the long, hard-labor type life sentence would ask a greater deterrent than executions.

Dave

Your thinking is excellent and on track. I think deterrance in regards to the death penalty - it's a laughable notion. IF it were applied all the time - I think it's still doubtful we'd see deterent value, unless we sped up the process from crime to execution to a matter of days.

[WankerMcGoo]

Stop yer silly nonsense lad! The firing squad should never be thought of as a punishment but merely as a tool that prevents future murders.

[gman]

beej76 said:

Your thinking is excellent and on track. I think deterrance in regards to the death penalty - it's a laughable notion. IF it were applied all the time - I think it's still doubtful we'd see deterent value, unless we sped up the process from crime to execution to a matter of days.

Granted. But the OP is quoting an argument that LWOP is a greater deterrent than the DP. Do you think LWOP is, or could ever be, a deterrent of significance given the argument given by Beccaria?

[beej76]

gman said:

beej76 said:

Your thinking is excellent and on track. I think deterrance in regards to the death penalty - it's a laughable notion. IF it were applied all the time - I think it's still doubtful we'd see deterent value, unless we sped up the process from crime to execution to a matter of days.

Granted. But the OP is quoting an argument that LWOP is a greater deterrent than the DP. Do you think LWOP is, or could ever be, a deterrent of significance given the argument given by Beccaria?

I don't think either punishment would be a strong deterrent. We're trying to deter crazy people who obviously don't care much about what happens to them - that's tough to deter.

[Dave]

donnie said:

Dave said:

I have read Beccaria's writing about capital punishment, and I think he raised some great points. The first I'd like to approach is the idea that death is not as good a deterrent for crime as a long, grueling incarceration.

However, a long grueling incarceration is not possible. Even a long incarceration is becoming less likely.

Why is it not possible? I would think (I am not an expert by any means) that this could possibly provide some sort of middle ground between DP advocates and Anti-DP folks. It might satisfy deterrence, retribution, cost, and even vengeance issues.

One sticking point might be that this way of dealing with murderers is more inhumane than the death penalty. Beccaria is no wimp on the subject, and writes about it being all the better for the increased deterrent effect. (I don't have the book on me, but I will post that quote too if you like).

Another that I anticipate is that the type of sentence provides for a chance at escape or harm being done to another person (e.g. guards, citizens, other inmates). To my mind, this is a surmountable problem, but even if it were not if you accept the increased deterrence theory (which you may or may not, I am not judging here) then the balance of potential lives being saved is a strong rebuttal.

Anyways, I think it is _possible_ to have a system like this, but it would take a lot of political will. Interesting to contemplate.

Thanks again for the discussion, this is really fascinating stuff to me.

Dave

[SkyLoom]

Dave said:

Hi There,
I am pretty much on the fence about the DP, so i decided to do a (big) paper on the subject for a class. After _tons_ of research, I have still not decided what my stance is. I wondered if I might get reaction to a couple of things for clarity.

......

Anyhoo, let me know what you think of the idea that the long, hard-labor type life sentence would ask a greater deterrent than executions.

Dave

I think before you consider which is the better deterrent you need to clarify your own thinking about what the proper role of the prison system should be.

Personally, I think deterrence is way down (or should be way down) on the list of things we want the prison system to accomplish.

Meanwhile, since you are a student and if you have the time, read "Native Son" by Richard Wright. It's set in the 1930s when executions were far more common, but after you've read it perhaps your thoughts on the deterrent value of capital punishment will change a bit. "Bigger" knew well his chances of being executed... considered them at some level... yet murdered two times.

I think the prison system should provide restraint... keep a person who has proved dangerous away from those of us who are not dangerous. After that, it should have as its goal the correction of the prisoner's thinking and behavior so that, at some point, s/he might be readmitted into society and pose no further danger to the rest of us. I think there are many ways to deter those who contemplate criminal acts... none of which involve prison.

[Dave]

I will find the book. thank you!

[Deleted]

I spent over ten years as a corrections officer in Texas and Oklahoma.

I found that dealing with convicts is much like dealing with five-year-olds. Most five-year-olds know nothing of delayed consequences.

If Johnny asks Mommy for a cookie, telling him "You may have one in an hour" is exactly the same as a flat refusal.
If Johnny paints the cat, and Mommy tells him "Just you wait until your father gets home!" any consequences Father administers are largely perceived as "Daddy is picking on me."

If Mommy does not come across with the promised cookie, Johnny knows that Mommy is a liar.
If Daddy does not punish Johnny, Johnny learns that Mommy and Daddy are all bark and no bite.

For five-year-olds, and for convicts, behavior is best shaped by consequences that are both swift and certain.

If a death sentence were pronounced, and the case carefully examined for errors for a month, and (no errors having been found) the sentence carried out thirty days later, we would have a much better idea whether or not capital punishment deters crime.

(For my part, it matters not whether it deters crime or not. My sole interest is in ensuring that a murderer never murders again -- and the death penalty is, for that end, 100% effective.)

[Grey]

Exactly, if people are sentenced to the dP then are taken off, its all bark and no bite. But if 100% sure that the person convicted ( because I don't want to see an innocent man-such as Stephen Tresscott) get the DP...if the case is air solid tight that Mr. X is guilty then within a month he should be executed...

sylviasdaddy said:

I spent over ten years as a corrections officer in Texas and Oklahoma.

I found that dealing with convicts is much like dealing with five-year-olds. Most five-year-olds know nothing of delayed consequences.

If Johnny asks Mommy for a cookie, telling him "You may have one in an hour" is exactly the same as a flat refusal.
If Johnny paints the cat, and Mommy tells him "Just you wait until your father gets home!" any consequences Father administers are largely perceived as "Daddy is picking on me."

If Mommy does not come across with the promised cookie, Johnny knows that Mommy is a liar.
If Daddy does not punish Johnny, Johnny learns that Mommy and Daddy are all bark and no bite.

For five-year-olds, and for convicts, behavior is best shaped by consequences that are both swift and certain.

If a death sentence were pronounced, and the case carefully examined for errors for a month, and (no errors having been found) the sentence carried out thirty days later, we would have a much better idea whether or not capital punishment deters crime.

(For my part, it matters not whether it deters crime or not. My sole interest is in ensuring that a murderer never murders again -- and the death penalty is, for that end, 100% effective.)

[josephdphillips]

sylviasdaddy said:

I spent over ten years as a corrections officer in Texas and Oklahoma. I found that dealing with convicts is much like dealing with five-year-olds. Most five-year-olds know nothing of delayed consequences. If Johnny asks Mommy for a cookie, telling him "You may have one in an hour" is exactly the same as a flat refusal. If Johnny paints the cat, and Mommy tells him "Just you wait until your father gets home!" any consequences Father administers are largely perceived as "addy is picking on me." If Mommy does not come across with the promised cookie, Johnny knows that Mommy is a liar. If Daddy does not punish Johnny, Johnny learns that Mommy and Daddy are all bark and no bite. For five-year-olds, and for convicts, behavior is best shaped by consequences that are bothswiftandcertain. If a death sentence were pronounced, and the case carefully examined for errors for a month, and (no errors having been found) the sentence carried out thirty days later, we would have a much better idea whether or not capital punishment deters crime. (For my part, it matters not whether it deters crime or not. My sole interest is in ensuring that a murderer never murders again -- and the death penalty is, for that end, 100% effective.)

Great post. Thanks for your valuable input, SylviasDaddy.

I agree with you that deterrence isn't the most important thing going for capital punishment. It's possible some might be deterred by it, but it's not the end of the world if no one is. In fact, capital punishment is all the more necessary if nothing deters murder at all.

[Dave]

The idea that deterrence is not an issue because nothing deters murderers is a really interesting one. I looked around and found a good passage for this idea too.

This passage comes from Thucydides account of the argument around how the Mytilene rebellion was to be punished (around 427 b.c.). There are several arguments about it, but one guy, Dioditus, makes a couple of interesting statements that bear here:

Men have gone through the whole catalog of penalties in the hope that, by increasing their severity, they may suffer less at the hands of evildoers. In early ages the punishments, even those of the worst offenses, would naturally be milder; but as time went on and mankind continued to transgress, they seldom stopped short of death. And still there were transgressors. Some greater terror then had to yet to be discovered; certainly death was no deterrent.

In a word then, it is impossible and simply absurd to suppose that human nature when bent upon some favorite project can be restrained either by the strength of law or by any other terror.

Fits a couple of comments in this thread, I think. What a subject. I might have to go ahead and join this board :-)

Dave

[Dave]

sylviasdaddy said:

I spent over ten years as a corrections officer in Texas and Oklahoma.

I found that dealing with convicts is much like dealing with five-year-olds. Most five-year-olds know nothing of delayed consequences.

If Johnny asks Mommy for a cookie, telling him "You may have one in an hour" is exactly the same as a flat refusal.
If Johnny paints the cat, and Mommy tells him "Just you wait until your father gets home!" any consequences Father administers are largely perceived as "Daddy is picking on me."

If Mommy does not come across with the promised cookie, Johnny knows that Mommy is a liar.
If Daddy does not punish Johnny, Johnny learns that Mommy and Daddy are all bark and no bite.

For five-year-olds, and for convicts, behavior is best shaped by consequences that are both swift and certain.

If a death sentence were pronounced, and the case carefully examined for errors for a month, and (no errors having been found) the sentence carried out thirty days later, we would have a much better idea whether or not capital punishment deters crime.

(For my part, it matters not whether it deters crime or not. My sole interest is in ensuring that a murderer never murders again -- and the death penalty is, for that end, 100% effective.)

I generally agree with your logic here. Would it not apply to _any_ punishment that might be given? I bet Anti-DP folks would agree with that part, anyways.

As to merely taking a murderer out of circulation, I think that while it is a good thing to inhibit recidivism by 100%, it might make better arithmetic to reduce recidivism by 99.9% and then also deter others from taking another's life. What I am trying to say here is that, to my mind, deterrence is an issue that should be considered. That is not to say that the DP or some other alternative is _more_ of a deterrent or not. That I just simply do not know.

Does anyone have the actual numbers (or know where to find them) about recidivism rates for murderers who are released?

[Deleted]

Does anyone have the actual numbers (or know where to find them) about recidivism rates for murderers who are released?

I have been out of the business since 1998, so my information is probably behind the times -- so it should be taken as clues rather than as authoritative.

The most accurate recidivism rates would be State-specific (how many released Texas killers kill again in Texas, how many released Nebraska killers kill again in Nebraska, etc.).

Another point to address besides released murderers killing again is inmates killing staff, or other inmates, while in confinement.

A university with a good criminal justice department could probably tell you where to look -- or some State criminal justice entities might have the figures online.

One factor to consider when looking at murder rates in pro-/anti-capital punishment States: Sometimes a State will vote in capital punishment in response to[/i] a high murder rate. (I seem to remember reading that Kansas abolished the death penalty in the late 1800s/early 1900s because the murder rate was low, then they brought it back in the 1920s/1930s because the murder rate got to be so high in the days of the gangsters.)

Please post what you find. (If you direct a copy to me, so much the nicer.)

If a released murderer (or an incarcerated murderer) kills a victim, that's one murder that could have been prevented had the murderer in question been put to death instead of merely being locked up.

[Dave]

Great Idea. I will see what I can dig up and will post what I find. It may take a bit though, as I have a couple deadlines looming for projects.

Dave

[Donnie]

Dave said:

Why is it not possible?

Because the type of punishment envisioned by Beccaria has already been banned by the US Supreme Court. Even punishment that is less harsh must be justified for reasons other than the initial crimes of criminals.

I would think (I am not an expert by any means) that this could possibly provide some sort of middle ground between DP advocates and Anti-DP folks. It might satisfy deterrence, retribution, cost, and even vengeance issues.

The problem with your thought here is that you don't understand the organizations who oppose the death penalty. The are not interested in occupying a middle ground, except as they quickly pass through it. They are working right now against LWOP while they are working to abolish the DP. The LWOP that they are working against is not the type of punishment envisioned by Beccaria, it is much more pleasant. Any punishment that would even approach true vengence is already forbidden.

One sticking point might be that this way of dealing with murderers is more inhumane than the death penalty. Beccaria is no wimp on the subject, and writes about it being all the better for the increased deterrent effect. (I don't have the book on me, but I will post that quote too if you like).

Inhumane punishement has already been outlawed. So what Beccaria wrote is irrelavent.

Another that I anticipate is that the type of sentence provides for a chance at escape or harm being done to another person (e.g. guards, citizens, other inmates). To my mind, this is a surmountable problem, but even if it were not if you accept the increased deterrence theory (which you may or may not, I am not judging here) then the balance of potential lives being saved is a strong rebuttal.

There is no evidence that it is a surmountable problem. There is firm evidence that failure to execute will always result in more harm to non-murderers.

Anyways, I think it is _possible_ to have a system like this, but it would take a lot of political will.

The amount of political will that it would take to have such a system does not exist. So although such a system is "possible", it is possible only by the most generous definition of "possible".

[Deleted]

When the Constitution was written, "cruel and unusual punishments" were such things as disembowelment, the rack, and boiling in oil.

The bleeding-heart knee-jerk liberals have made such hash of the criminal justice system that it is almost ineffective.

One way to put things right would be to amend the US Constitution, and each State's constitution, as follows:

No person who has been convicted of a felony by any State or Federal court shall enjoy any rights whatsoever under this Constitution until his sentence shall have been served in full.

Under the terms of this amendment:
• A convicted felon shall not have freedom of religion.
• A convicted felon shall not have freedom of speech.
• A convicted felon shall not have freedom of the press.
• Convicted felons shall not have the right of assembly.
• A convicted felon shall not have the right to petition the government for redress of grievances.
• A convicted felon shall not have the right to keep and bear arms.
• A convicted felon may be subject to unreasonable searches and seizures.
• A convicted felon may be held to answer for a capital or otherwise infamous crime without presentment or indictment of a grand jury.
• A convicted felon may be subject for the same offense to be twice put in jeopardy of life or limb.
• A convicted felon may be compelled in criminal cases to be a witness against himself.
• A convicted felon may be deprived of life, liberty, or property without due process of law.
• A convicted felon is not entitled to a speedy and public trial.
• A convicted felon is not entitled to be informed of the nature and cause of the accusation against him.
• A convicted felon is not entitled to be confronted with the witnesses against him.
• A convicted felon is not entitled to have compulsory process for obtaining witnesses in his favor.
• A convicted felon is not entitled to have the assistance of counsel for his defense.
• A convicted felon may be required to post excessive bail.
• A convicted felon may be required to pay an excessive fine.
• A convicted felon may be required to suffer cruel and unusual punishment.
• A convicted felon is not entitled to vote.
• The failure of this list to deny a right to a convicted felon shall not be construed to bestow such right.

That would muzzle the bleeding-heart knee-jerk liberals. Criminal justice could do what it takes to punish criminals. Those criminals who would benefit from light consequences can receive light consequences; those who require sterner measures could receive those sterner measures -- as stern as necessary to achieve the desired end.

[WankerMcGoo]

Only a true sadist would agree to such nonsense! Fortunately for all of us most Americans are reasonable men and women who would never put up with an amendment, which you propose, that was so blatantly un-American

[Deleted]

WankerMcGoo said:

Only a true sadist would agree to such nonsense! Fortunately for all of us most Americans are reasonable men and women who would never put up with an amendment, which you propose, that was so blatantly un-American

Wanker McGoo says "only a true sadist would agree" with my proposal.
By definition, a sadist is someone who derives sexual pleasure by inflicting pain.
A diagnosis of sadism can be made only by a trained mental-health professional.
Wanker McGoo has yet to show that he is qualified to make such a diagnosis.

Wanker McGoo calls my proposal "nonsense" -- but he fails to show that it would be ineffective; that it would not enable the criminal justice system to take whatever steps might be necessary to achieve the desired end.

Wanker McGoo says my proposal is un-American.

1. All sixteen of my second-great-grandparents were native-born United States citizens.
2. All eight of my great-grandparents were native-born United States citizens.
3. All four of my grandparents were native-born United States citizens.
4. Both of my parents were native-born United States citizens.
5. I am a native-born United States citizen.
6. I gave six years of my life in the US Navy that you might live free.
7. I gave four years of my life in the Texas Army National Guard that you might live free.
8. I helped achieve the victory in Desert Storm.

I am, therefore, thoroughly American.

9. I made the proposal.

Unless Wanker McGoo can show that I am something other than an American (for example, if he can show that I am a citizen of Germany, or Spain, or Rwanda or some other nation), or he can show that, rather than formulating the proposal myself, I repeated what I had heard some German/Spaniard/Rwandan/other foreigner say, his calling my proposal "un-American" is an empty charge.

(Perhaps we could persuade Wanker McGoo to explain to us why he wants to coddle criminals.)

[Dave]

sylviasdaddy said:

When the Constitution was written, "cruel and unusual punishments" were such things as disembowelment, the rack, and boiling in oil.

Hey there. I am sorry I can't respond to all of the great views being put forward, but I did want to make one quick point (i am being a very bad procrastinator and not writing my heart out for my assignments right now).

With regards to the above quote, it is a common misperception that "cruel and unusual" refers to torture and nasty methods of punishing people only. It certainly _does_ refer to these things, but it also points to arbitrary and unfair punishment.

This type of "cruel and unusual" was the basis for the 1972 Supreme Court decision which struck down state death penalty laws. When the states returned with revised statutes that included guided discretionary sentencing rules, the laws were reinstated.

My language on the subject may be a bit wrong, i am not a lawyer, but I think the spirit is correct.

I am now resisting a temptation to write more. I have so many questions.

To the moderator: this thread may have moved beyond my intended purpose of clarifying thoughts for my school project. Is there a way that I can move it to the main board so as not to take space for other scholars?

Dave

[Deleted]

Dave said:

sylviasdaddy said:

When the Constitution was written, "cruel and unusual punishments" were such things as disembowelment, the rack, and boiling in oil.

With regards to the above quote, it is a common misperception that "cruel and unusual" refers to torture and nasty methods of punishing people only. It certainly _does_ refer to these things, but it also points to arbitrary and unfair punishment.

This type of "cruel and unusual" was the basis for the 1972 Supreme Court decision which struck down state death penalty laws.

Here we have an example of the prevailing erroneous thinking that a law (including the Constitution) means whatever the Supreme Court says it means at any given moment.

Following that philosophy sets the stage for confusion. A prime example: the omitted Constitutional amendment between Plessy v. Ferguson and Brown v. Board of Education of Topeka.

Actually, a law (including the Constitution) means what its authors intended it to mean.

The wise thing to do is to follow the law exactly as its writers wrote it. If we are unwilling to do that, then amend the law and follow the new law.

Either change the practice to match the theory, or change the theory to match the practice -- but this business of saying one thing and doing another only engenders confusion and disregard for the law.

By way of example: the Fifth Amendment states in part nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.
In 1788 (when the States began ratifying the Constitution) criminals could still be flogged. The Fifth Amendment said that one could not be tried twice for the same offense if the possible punishments included flogging.

Since the wording of the Fifth Amendment is the same today as it was in 1788, sentencing someone today to be flogged would still be Constitutionally unobjectionable. If we today would find flogging abhorrent, the proper thing to do is to amend the Constitution to say The range of permissible punishments shall not include flogging, or words to that effect.

Interesting note: In Delaware the last flogging took place in 1952. Corporal Punishment was not abolished in Delaware until 1972 -- and until 1905, Delaware still used the pillory!

[Dave]

without (hopefully) getting into a debate on judicial activism and legislating from the bench...

The law _does_ mean what the Supreme Court says it means at a given time. That is what the Supreme Court does... it interprets the law, including the constitution.

This is why if the Supreme Court says "Capital Punishment is Unconstitutional," it is no longer legal.

If this interpretation is incorrect, it may be changed later, or Congress can change the law to be more clear as to its intent. I think that interpreting "cruel and unusual" as applying to punishment that hinges on your race, gender, wealth, or other arbitrary factors is defintely supportable.

As to what the framers _meant_ when they wrote the law, _you_ are interpreting what _you_ think they meant.

I may be tlaking out of my butt on this. I am not an expert.

Your point is well taken that this process engenders confusion, but whatcha gonna do? The same problems come out with trying to find the meaning of other documents as well... like the Bible, or Joyce's Finnegan's Wake where the author is not available for comment and clarification.

It occurs to me that the above statements may be interpreted as inflammatory. I assure you that is not my intention. I am interested in what you have to say and rebut to continue the dialogue. I have noticed that several threads around here tend to devolve into nasty, irrational bickering. I don't want to be that type of poster.

Be Well,
Dave (Back to writing)

[Donnie]

Dave said:

The law _does_ mean what the Supreme Court says it means at a given time. That is what the Supreme Court does... it interprets the law, including the constitution.

Interpretation does not include changing the meaning.

[Dave]

They didn't change the meaning. It is reasonable and rational to interpret the meaning of "cruel and unusual" with regards to punishment as including arbitrary and unfair. I am not saying I agree with them, I am saying that this was a supportable interpretation.

Dave

[Deleted]

The law _does_ mean what the Supreme Court says it means at a given time. That is what the Supreme Court does... it interprets the law, including the constitution.

This is why if the Supreme Court says "Capital Punishment is Unconstitutional," it is no longer legal.

If capital punishment was ever legal, it was always legal, and always will be legal until the Constitution is amended to proscribe it.
An act cannot be legal at one time, and illegal at another, unless a legislature changes the law.
To interpret a law is to explain what that law means. Once the meaning is explained, that law is defined so long as the law lasts.

If this interpretation is incorrect

You contradict yourself. If the final authority as to the meaning of a law is the fiat of the Supreme Court, then the Supreme Court's decision cannot possibly be incorrect.

As to what the framers _meant_ when they wrote the law, _you_ are interpreting what _you_ think they meant.

Not at all. If they, for example, meant to exclude capital punishment, either no executions would have ever been performed since 1788, or the practice would have been stopped after the first few.
If giving a murderer a lethal injection today is forbidden because it is cruel and unusual punishment, then electrocuting the Rosenbergs in 1953 would have been forbidden because it was cruel and unusual punishment, and hanging Charles Guiteau in 1882 would have been forbidden because it was cruel and unusual punishment, and hanging Mary Surratt in 1865 would have been forbidden because it was cruel and unusual punishment.
The Eighth Amendment reads exactly the same word-for-word today as it did in 1788, so it must mean exactly the same thing today that it meant in 1788.
If people today do not like the idea of killing a criminal, it is up to them to have their various State legislatures rescind the death penalty.

[WankerMcGoo]

sylviasdaddy said:

1. All sixteen of my second-great-grandparents were native-born United States citizens.
2. All eight of my great-grandparents were native-born United States citizens.
3. All four of my grandparents were native-born United States citizens.
4. Both of my parents were native-born United States citizens.
5. I am a native-born United States citizen.
6. I gave six years of my life in the US Navy that you might live free.
7. I gave four years of my life in the Texas Army National Guard that you might live free.
8. I helped achieve the victory in Desert Storm.

SylviasDaddy, after reading your self gratuitous rhetoric above I was immediately reminded of that famous old pronouncement by Samuel Johnson “Patriotism is the last refuge of a scoundrel”.

However, in your case I’d chance to say that it is the last smokescreen of a sadist. So for future reference be advised that your family history is completely irrelevant as to whether your proposal was un-American or not. After all, it’s a given that I was speaking about the spirit of your proposal and not its geographical origin. You silly dufus!

Cordially, Wanker McGoo

[Deleted]

SylviasDaddy, after reading your self gratuitous rhetoric above I was immediately reminded of that famous old pronouncement by Samuel Johnson “Patriotism is the last refuge of a scoundrel”.

However, in your case I’d chance to say that it is the last smokescreen of a sadist.

As shifting ground is your smokescreen.

You have not addressed any of the issues I raised:

1. You have yet to show your qualification to diagnose sadism
2. You have yet to show that my proposal is un-American
3. You have yet to explain why you want to coddle criminals