cruel and unusual punishment

Comment the Day: “Exposing America’s Dungeons…”

/ Jack Marshall / 1 Comment

Maybe Tom Cruise knows how they stored the prisoners in "Minority Report"---that seemed to be a quiet and pleasent prison environment...

Dwayne N. Zechman makes trenchant observations and raises difficult questions in his comment to the post, “Exposing America’s Dungeons: The New York City Bar Report on Supermax Prisons.” The report to some extent answers Dwayne’s primary point by stating that the need for special high-security prisons to prevent violence to inmates and guards cannot justify an unconstitutional solution. If the conditions in the supermax prisons are as described in the report, there can be no doubt that it violates the prohibition against “cruel and unusual punishment.” That is an absolutist position like the prohibition against torture: ethically, arguing that “it works” or “there’s no other way” or “oh yeah? What would YOU do?” won’t and cannot prevail…unless we conclude that when we have to choose the lesser of two evils, forcing violent and otherwise uncontrollable criminals to live in dungeon-like condition is preferable to having them kill people might be the winner. Continue reading →

Exposing America’s Dungeons: The New York City Bar Report on Supermax Prisons

/ Jack Marshall / 15 Comments

“…The overriding rationale for supermax confinement is to impose order  and maintain safety in the prison environment.  The unmitigated suffering caused by supermax confinement, however, cannot be justified by the argument that it is an effective means to deal with difficult prisoners. The issue, we believe, is not whether supermax achieves its purposes or is effective at controlling and punishing unruly inmates.
Instead, the question is whether the vast archipelago of American supermax facilities, in which some prisoners are kept isolated indefinitely for years, should be tolerated as consistent with fundamental principles of justice. Even prisoners who have committed horrific crimes and atrocities possess basic rights to humane treatment under national and international law. Although the Constitution “does not mandate comfortable prisons,” it does require humane prisons that comport with the Eighth Amendment’s prohibition against punishments that are “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society” or which “involve the unnecessary and wanton infliction of pain.” More recently, the Supreme Court stated that “[p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.”

“Supermax confinement as extensively implemented in the United States falls short of this standard and must be substantially reformed.”

—-The New York City Bar in its just-released report on “supermax” prisons in the United States.  The report declares supermax imprisonment, which currently holds 80,000 prisoners, to be the equivilent of torture and a violation of international human rights standards.

The report is harrowing, horrifying, and a source of shame for all Americans. The lack of concern by the public and its elected representatives in maintaining humane conditions in our prisons is understandable but inexcusable nonetheless. The New York City Bar has performed  a great service by issuing the report; it is up to us to insist that it is acted upon without delay. The United States of America should not be operating dungeons.

You can, and must, read it here.

Ethics Heroes: The U.S. Supreme Court

/ Jack Marshall / 1 Comment

To be more accurate, the heroic component in this instance is the liberal wing of SCOTUS ( Justices Sotomayor, Kagan, Ginsberg, and Breyer) plus the swing vote, Justice Kennedy, who wrote the majority opinion in Brown v. Plata.  The decision upheld a court order requiring California to release a staggering 46, 000 inmates of its prisons, more than a fourth of the those sentenced there. The majority concurred with the lower court’s assessment that California prisons were so obscenely over-crowed that conditions amount to a human rights violation and a breach of the constitutional prohibition on “cruel and unusual punishment.”

Some Supreme Court decisions come down to ethics as much as law, and this was certainly one of those times. At issue from a legal standpoint was  whether federal judges had the power to order the release of state prisoners as a necessary means of curing a constitutional violation. But the brilliant legal minds on the conservative side of the Court’s divide had no problem answering that question in the negative, and persuasively too.  The dilemma is that California’s least sympathetic citizens, its residents of the state’s penal institutions, are being kept in conditions that violate their constitutional rights, and despite many years of knowing about the problem, the state hasn’t found a way to rectify it. Continue reading →

Sending Teenagers To Prison Forever

/ Jack Marshall / 9 Comments

He's only 14. Could he really be irredeemable?

The Wisconsin Supreme Court has upheld a life sentence for a man who helped throw a boy off a parking ramp when the prisoner was only 14 years old. At issue was whether sentencing someone to life imprisonment without parole for a crime committed at such a young age was prohibited by either the U.S. or the Wisconsin Constitution. The Court ruled not, finding that no national consensus has formed against such sentences.

I can accept that this is the proper legal standard, and that the decision may be correct regarding the law. It is also ethically wrong.

All such problems involve line-drawing and its well-known slippery slopes: if a 19-year old can be sentenced to jail forever, how different is an 18-year-old? 17? 16? Before you know it, we are sentencing 6-year-olds to life imprisonment. We do not have to fall into that trap, however, to declare that it is unethical, though legal, to sentence a 14-year-old boy to an endless jail term. Why? The sentence lacks compassion, mercy, proportion and common sense.

Certainly the crime was a horrible one. Omer Ninham was convicted of first-degree intentional homicide for his role in the death of 13-year-old Zong Vang  in 1998. Ninham and four others between the ages of 13 and 14 accosted the boy  as he was riding his bike home from the grocery store. Ninham and another member of the group teased Vang, punched him, and when Vang ran into a nearby hospital parking ramp, assaulted him on the top floor. Ninham and a friend seized Vang by the wrists and ankles, and as Vang screamed for help, threw him over the edge. He fell five stories, and hit the ground “like a wet bag of cement hitting the pavement,” as a witness put it. Two years later, when Ninham was 16, a judge sentenced him to life without parole. Continue reading →

Comment of the Day: “Osama’s Assassination: The Ethics Elephant in the Room”

/ Jack Marshall / 1 Comment

First time commenter Margo Schulter delivers a powerful, passionate and eloquent absolutist rebuttal to my post asserting an ethical defense of Osama bin Laden’s targeted killing/assassination/execution by U.S. military personnel. My immediate response to her can be found in the comments to the original post here; I don’t want to re-post it with this post because Margo’s thoughtful comment should be read and thought about prior to considering my rebuttal. Ethics Alarms is blessed with many sharp and persuasive comments, and this is one of the finest. In the grand tradition of absolutism, her answer to my question about firing the bullet that would kill an unarmed and submissive Osama  is “I wouldn’t fire that bullet to save the whole universe.” And she explains why:

“Please let me try to put my best foot forward, and keep a spirit of civility and friendly inquiry, as I say that my whole being — my guts, heart, intuition, and intellect –cry out, “No exceptions! Executions, extrajudicial or legal, are _wrong_!” I wonder what an MRI might show, and what neuroethics might say, about how people in the U.S.A. and elsewhere have such different reactions to what I would call a consummately evil and dehumanizing act.

“Please let me also apologize for the length of this comment, nevertheless just the starting point for a dialogue with lots of ramifications. How do pacifists like me see the scale of moral evils in different kinds of violence, and when might we consider using certain forms of nonlethal force? Also, there’s a way that President Obama might have modified his strategy a bit to fit Frances Kamm’s Doctrine of Triple Effect (DTE), illustrating what I see as the dangers of this intellectually intriguing concept. I’d love to join a dialogue going in any or all of these directions.

“It’s curious. You write, “I assume you shoot him dead.” And my whole being cries out, “You assume wrong!” While I’m not a physicalist, I do recognize that while we’re in this world experience and behavior are mediated through the brain, so I wonder what an MRI or the like would show for
people who have these radically different intuitions. Continue reading →

Is Flogging More Ethical Than Incarceration?

/ Jack Marshall / 6 Comments

Ah, those were the good old days!

Peter Moskos is about to publish a book entitled “In Defense of Flogging.” He’s not really advocating a return to the Cat O’ Nine Tails, however, but engaging in a so-called “thought experiment”, which Moskos, an assistant professor of law, police science, and criminal-justice administration at the John Jay College of Criminal Justice, summarizes at the end of his article on the topic (in the Chronical of Higher Education) like this:

“So is flogging still too cruel to contemplate? Perhaps it’s not as crazy as you thought. And even if you’re adamant that flogging is a barbaric, inhumane form of punishment, how can offering criminals the choice of the lash in lieu of incarceration be so bad? If flogging were really worse than prison, nobody would choose it. Of course most people would choose the rattan cane over the prison cell. And that’s my point. Faced with the choice between hard time and the lash, the lash is better. What does that say about prison?”

I’ll answer that:  it says that imprisonment is a better and more efficient punishment for serious crimes than flogging, and who didn’t know that? Continue reading →

Ethics Dunce: Prosecutor Kit Bramblett

/ Jack Marshall / 13 Comments

Uh, Willie? The judge woul like you to put down the weed and sing.

In West Texas, Hudspeth County prosecutor has recommended an unusual set of penalties for country music legend Willie Nelson, who has been arrested for possession of marijuana as he has been many times in the past. County Attorney Kit Bramblett has recommended to the judge in the case that she allow Bramblett to drop possession charges if Nelson pleads guilty, pays a fine…

…. and sings “Blue Eyes Crying in the Rain” for in court.

His recommendation is ethically offensive on many levels, though it is probably not a violation of any Texas rule of legal ethics, for the Texas Rules of Professional Conduct does not directly address Ethics Dunces. However… Continue reading →

Why “Cheating the Hangman” Is Unethical

/ Jack Marshall / 1 Comment

Brandon Joseph Rhode, a convicted killer who attempted suicide hours before he was to be put to death yesterday by injection, had his execution postponed by the Georgia Supreme Court. He tried to slit his wrists and his throat, but was stopped in time to save his life.

This happens every now and then, and when it does someone always asks why the State doesn’t just let the condemned do its job for them and let the prisoner die. The reason is that it would be wrong, in a couple of ways: Continue reading →

Deceit and Dishonesty in the Capital Punishment Debate

/ Jack Marshall / 6 Comments

Those who oppose the death penalty on moral grounds, fervently believing that the taking of human life is always wrong, also believe, it seems, that lesser sins are legitimate tools if they can save even one condemned prisoner. The misconduct of choice seems to be intellectual dishonesty, and there have recently been some  obvious displays of it. Whether you believe such tactics are justifiable or not, there is no question that they muddle the capital punishment debate. Continue reading →