Talk:Eighth Amendment to the United States Constitution/Archive 1

Archive 1

Punishments completely forbidden

There is a segment here that reads:

"Because it is the needless infliction of pain, torture is prohibited by the Eighth Amendment.[citation needed]"

This is a hard one to edit, but also hard to remove. My best attempt at an idea was to change "Because it is" to "If it were legally shown to be" or something indicating the need for a Judicial test-case relevant here..., but that sounded as if it would lack neutrality, somehow suggesting that the Eighth is ineffectual prohibit torture, or suggesting some non-neutral view of the Eight as facilitating torture somehow.

Although it does not literally prohibit torture outright, one might assume that the spirit of the amendment targets torture-like behaviour. However, like most constitutional law, it is open to interpretation and/or change in interpretation, something that many supreme courts, including the US supreme court, can do.

This is highlighted with Antonin Scalia's recent TV interview, where he illustrates that the general or majority view (elementary school teaching, for instance) that the spirit enshrined in the Eighth prohibits torture is, unfortunately, irrelevant to the Judicial interpretation of the Eighth. His point appears to be that "punishment" may not necessarily be torture, not because of any pain/psychological harm/etc.etc. involved in torture, but because punishment as it is often understood, suggests a Lawful Judgment that calls for a Punishment, i.e. the law cannot punish you in a cruel or unusual way. Although punishment has been understood by previous US supreme courts in previous cases to be far wider an encompassing term than Scalia's particular opinion, his views do suggest that a Bill specifying the fact outright may be appropriate, as a conservative supreme Judiciary would be unlikely to choose (it is their choice to hear cases, after all) to touch this issue with a 10' or more pole, so to speak.

Given the temporal flexibility of definition and interpretation of this amendment, and given that (to the best of my knowledge, feel free to enlighten me) the interpretation of this amendment in circumstances particular to torture by/through US citizens and/or agents of state has yet to be clearly defined, .....

....how are we to rewrite the original sentence without suggesting one way or the other as to it's applicability in cases of torture? We can't really say that it _does_ prohibit torture, but neither can we really say that it _does not_ prohibit torture. And when (as I have tried) we attempt to write it as an "IF", it unnecessarily becomes a "suspicious" sentence, indicating some subversive intent of the editor, one way or the other...

Can someone clear this up? It doesn't require constitutional interpretation, just a good linguistic understanding of how to properly reform this sentence to make it more ambiguous.

In this case, the ambiguous needs to be... well... ambiguous, really... In any case, the current sentence really needs work.

'nuff said. I write too much. Wernhervonbraun (talk) 14:50, 4 May 2008 (UTC)

Indeed you write too much and read too little -- namely, Wikipedia policy. All of the above except for the part about Scalia's view is WP:OR and has no place in a WP article. -- 98.108.198.236 (talk) 22:29, 18 December 2009 (UTC)

Capital punishment suspension time

I noticed that this page says capital punishment was "effectively suspended" between 1967 and 1976. From what I gather it was actually from 1973 (or 1972, after Furman v. Georgia) but I'm not an expert on this. Is a change warranted? (I did a change but reverted since I wasn't sure.)

Why no history on the amendment itself? Who wrote it? What previous law(s) was it based on? What were the arguments surrounding its passage? More info would be nice.Tubbyty 19:48, 1 March 2006 (UTC)

Check the United States Bill of Rights article. James Madison drafted the article that was adopted as the Eighth Amendment. It was ratified in 1791 with the rest of the Bill of Rights, and so has been part of the US Constitution for all but the first few years of its existence. Schoop 19:46, 27 September 2007 (UTC)

Excessive fines

Has any case ever dealt with the "excessive fines" clause? -- 85.179.164.64 (talk) 00:09, 8 January 2008 (UTC)

Read United States v. Bajakajian, 524 U.S. 321 (1998). SMP0328. (talk) 00:09, 13 March 2009 (UTC)

OR?

Why is this original research?

In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, took the following position: "what was 'cruel and unusual' under the Eighth Amendment was to be determined without reference to the particular offense." Scalia and Rehnquist pointed to the text of the Eighth Amendment, which prohibits "excessive fines" — that provision regarding excessive fines would have been superfluous, according to Scalia and Rehnquist, if the "Cruel and Unusual Punishments" clause also prohibited excessive punishments.

Shouldn't it be mentioned somewhere in the article why some judges disagree that the Eighth Amendment includes a proportionality requirement? Ferrylodge (talk) 02:11, 4 July 2008 (UTC)

It's OR, because it is unsourced and appears to be your interpretation of what Justice Scalia, joined by Chief Justice Rehnquist, meant. That is quintessentially original research. SMP0328. (talk) 02:16, 4 July 2008 (UTC)

The quotes are from the opinion. The stuff that is not in quotes simply describes what was in the opinion. What do you think is interpretation rather than description? And if you think it can be phrased better, then why not do so? This article should mention the fact that some judges deny that the Eighth Amendment contains a proportionality (i.e. non-excessiveness) requirement. Do you disagree that that's a fact? Ferrylodge (talk) 02:20, 4 July 2008 (UTC)

What is in quotes needs to have a citation to what page of that opinion it is located. The rest is simply your interpretation of what they meant. That's not permitted in WP. An article is to contain facts, not the opinions of editors. SMP0328. (talk) 02:31, 4 July 2008 (UTC)

I don't have time for a big long argument. But please consider this. I wrote, "Scalia and Rehnquist pointed to the text of the Eighth Amendment, which prohibits 'excessive fines'." That is not my opinion, it is what they did, so please try not to confuse opinion with fact. Thanks.Ferrylodge (talk) 02:38, 4 July 2008 (UTC)

This is getting quite frustrating for me, SMP0328. You said above that what I wrote "needs to have a citation". So I put one in. Then you took it out. I don't get it. Why are you telling me to do stuff, and then reverting me when I do it? Ferrylodge (talk) 02:40, 4 July 2008 (UTC)

The citation I took out is already in that passage (it's next to the name of the case). As for the quoted material, I left it in. Just don't add your interpretation of the quoted material. SMP0328. (talk) 02:44, 4 July 2008 (UTC)

I'm not aware that a Wikipedia article about a Supreme Court case has to be a long string of direct quotations from the case. But, since you insist, I have inserted a direct quote ("the Eighth Amendment contains no proportionality guarantee") instead of what you call my interpretation ("took the position that the Eighth Amendment does not contain any proportionality principle"). Ferrylodge (talk) 02:49, 4 July 2008 (UTC)

Quotations are fine. You don't have to use only quotations for a court decision. You can also refer to a description given to the decision by someone else; Provided, that a reliable source is included. SMP0328. (talk) 02:53, 4 July 2008 (UTC)

Not everything needs to be footnoted. In the same paragraph you and I have been editing, for example, it says "a fractured Court retreated from the Solem test." Why don't you call that unacceptable "interpretation"? Because it's not. It's simply a description of what the case said. The stuff I wrote is standard factual description also. If you want to find woefully uncited and unsourced material in this article, you can go look in the section on "excessive bail". I was going to try to dig up sources and insert footnotes (so that the tag at the top of the article can be removed), but now I think I'll pass. Ferrylodge (talk) 03:00, 4 July 2008 (UTC)

I think I'm pretty much through with the changes that I've recently been making. Ferrylodge (talk) 20:15, 4 July 2008 (UTC)

Even though we had our disagreements, I think you have greatly improved the article. Good job. SMP0328. (talk) 20:31, 4 July 2008 (UTC)

Thanks. :-)Ferrylodge (talk) 22:00, 4 July 2008 (UTC)

I've added a bit more history.Ferrylodge (talk) 03:20, 6 July 2008 (UTC)

"The rest is simply your interpretation of what they meant." -- ridiculous. By this absurd standard of mischaracterization, nearly every article would have to be tossed. "An article is to contain facts, not the opinions of editors" -- false dichotomy. In this case, the editor's "opinion" of what the Justices wrote is a fact about what the Justices wrote. -- 98.108.198.236 (talk) 22:39, 18 December 2009 (UTC)

Preview

Before making edits, click the "Show preview" button. That will allow you to see what your edit would look like before you make it. That way, you can avoid having to make follow up edits. SMP0328. (talk) 03:41, 6 July 2008 (UTC)

Yeah, I know. Sorry about making so many edits. I really think I'm about done now. Hopefully, you can compare your most recent edit with my most recent edit, instead of looking at one edit at a time. I should really write stuff like this in my user space first. Anyway, I hope it's satisfactory.Ferrylodge (talk) 03:48, 6 July 2008 (UTC)

Chronological order

I'm a little bit concerned about moving the Kennedy v. Louisiana sentence. All of the cases in that section are discussed in chronological order. If the Kennedy case is moved out of order, then that opens the door for rearranging the order in which all the other cases are discussed too. Any problem if I move the Kennedy case back into chronological order?Ferrylodge (talk) 15:49, 7 July 2008 (UTC)

I moved the Kennedy material, because it is a follow up to the Croker decision. They should be together, because they are about the same legal issue (death penalty for non-lethal rape). --SMP0328. (talk) 17:10, 7 July 2008 (UTC)

All of the cases in this section that we're discussing, and also in the next section, are completely chronological. I'd prefer to keep it that way, but will not revert you by myself. We can either organize by subject or organize chronologically, and the approach now is chronological with this one exception. It's simple enough to attach a footnote to the Coker discussion that mentions Kennedy, and that's the way it was.Ferrylodge (talk) 17:18, 7 July 2008 (UTC)

I've moved Coker and Kennedy into a new sub-subsection of the Cruel and unusual punishments section. This should alleviate the chronological order concerns. SMP0328. (talk) 17:39, 7 July 2008 (UTC)

I guess that's a little better. Thanks.Ferrylodge (talk) 17:44, 7 July 2008 (UTC)

Heading

Regarding the heading about history before enactment of the Eighth Amendment, the heading now simply says "Background." I'd really prefer "Historical background" or "History before enactment" or "Legislative history" or something like that, because just saying "background" seems like an invitation for people to start putting all kinds of other background information into that section, such as background about the U.S. crime rate, background about similar provisions in state constitutions, background about how other countries regulate punishments, et cetera, et cetera.Ferrylodge (talk) 18:31, 28 August 2008 (UTC)

Historical background is redundant. In similar articles, the events that led to an amendment's adoption are placed in a section marked History or Background. There's no need to be use both terms for the section title. In the interest of compromise, I've changed the section title to Origin. There's no way to misunderstand that title. SMP0328. (talk) 18:59, 28 August 2008 (UTC)

Thanks. :) Ferrylodge (talk) 19:01, 28 August 2008 (UTC)

Your welcome. SMP0328. (talk) 19:08, 28 August 2008 (UTC)

Why change it again?Ferrylodge (talk) 03:11, 14 October 2008 (UTC)

Merging sections

I'm not sure it was a good idea to merge two sections of this article. The sections were: "Punishments completely forbidden" and "Punishments forbidden as excessive". This seems like a good way to divide up the article, so I'm inclined to restore it. Here's why....

On the one hand, the Supreme Court has said that some punishments are never okay, regardless of the crime. For example, drawing and quartering is not even allowed as a punishment for aggravated murder.

On the other hand, the Supreme Court has said that some punishments are okay for some crimes, but not for tother crimes. For example, the death penalty is okay for murder, but not for shoplifting.

So, this seems like a useful distinction.Ferrylodge (talk) 00:35, 14 October 2008 (UTC)

Confusion was evident in sections that referred to "England" and "English"

The words "England" and "English" were correct, but not extensive enough because Wales and other places such as the Isle of Man, the Channel Islands, British North America, and the Crown Colonies were also included. I have changed these reference to "United Kingdom" and "British" as good approximations even though I know that the United Kingdom was not established until 1706, and the British Bill of Rights was established earlier than that. The situation in Ireland is also an interesting and complicated issue.

However, the Parliament and the King in London governed not only England, but also Wales, British North America, and so on and for forth. Stating "England" and not even mentioning Wales, etc., implied that Wales was excluded. Furthermore, the British Bill of Rights, the Magna Carta, etc., presumably applied to Scotland after the United Kingdom was established in 1706. —Preceding unsigned comment added by 98.81.26.123 (talk) 02:07, 31 December 2010 (UTC)

Merge header

Why is there a header in the article claiming there is discussion regarding merging this article? SMP0328. (talk) 23:09, 26 January 2011 (UTC)

My bad; copy-pasted the wrong thing. Fixed; no longer recursive. --Cybercobra (talk) 23:18, 26 January 2011 (UTC)

John F. Kennedy's involvement

The introduction paragraph has a sentence that reads,

"John F. Kennedy was a major part in the making of this amendment."

I'm not sure how JFK would be involved in making (which I take to mean "drafting") the amendment when he was born in 1917 and the amendment was drafted in 1791. Some clarification or correction would be beneficial here. Markuskimius (talk) 23:13, 28 September 2011 (UTC)

Good catch. I removed that piece of Vandalism. SMP0328. (talk) 01:14, 29 September 2011 (UTC)

Medical care

This entry could use a section on the denial of medical care to inmates. See Michelle Kosilek for an instance of sex reassignment surgery. Other cases involve organ transplants. Bmclaughlin9 (talk) 18:59, 10 November 2012 (UTC)

Unexplained removal of material

Please do not remove material from this article without either a satisfactory explanation in the edit summary or a discussion on this talk page. Unexplained removal of sourced material is generally considered to be disruptive editing. Robert McClenon (talk) 01:00, 23 September 2013 (UTC)

Agreed, but I doubt Vandals care about your message. SMP0328. (talk) 01:26, 23 September 2013 (UTC)

State Farm v. Campbell

SMP0328 brought it to my attention that this case isn't an eighth amendment case. While this is mostly true, I think the relation it has to the concept of excessive fines certainly at least deserves a note - tho perhaps substantially less than what I added in my edit. Fresheneesz (talk) 01:14, 23 October 2014 (UTC)

State Farm v. Campbell involved the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment. Claiming there is a relation to the Excessive Fines Clause is OR. The Supreme Court decision that is about excessive fines (United States v. Bajakajian) is in the article. SMP0328. (talk) 01:31, 23 October 2014 (UTC)

No one has to claim there is any relation other than the obvious similarity in discussion around excessive fines. Someone coming here to research the constitutionality of excessive fines almost certainly would be interested in the State Farm case, and so I'm suggesting a note be added to the effect that:

"The Supreme Court case State Farm v. Campbell created precedent related to limiting fines, although it did so based on the 14th amendment's due process clause." Fresheneesz (talk) 02:19, 23 October 2014 (UTC)

State Farm did not involve a fine, it involved damages in a civil case. The Eighth Amendment involves the criminal justice system; the Fourteenth Amendment deals with damages. SMP0328. (talk) 02:38, 23 October 2014 (UTC)

Its plain common sense that civil penalties and fines have almost identical purpose. This source mentions that Justice Sandra Day O’Connor gave a detailed case demonstrating "convincingly" that punitive damages have always been treated as fines. The State Farm case is not simply operating in a vacuum, but brings in a more concrete legal framework for assessing monetary penalties, and is therefore indirectly relevant to the excessive fines clause. It should have a mention. Fresheneesz (talk) 04:31, 23 October 2014 (UTC)

Also, this source says explicitly that the Browning-Ferris v Kelco case led to the opinion in State Farm. Speaking of which, Browning-Ferris v Kelco is another case that should be mentioned in this article. Fresheneesz (talk) 04:47, 23 October 2014 (UTC)

Your addition of Browning-Ferris is acceptable. It is an Eight Amendment decision. The reference to State Farm is used to clarify Browning-Ferris, which is a proper use of State Farm within this article. SMP0328. (talk) 02:31, 25 October 2014 (UTC)

Meaning of "Cruel and Unusual

This may need to be better explained.

Does the prohbition of "cruel and unusual punishments" mean that both "Cruel" and "unusual" punishments are prohibited or must the punishment have to be "cruel AND unusual" to be covered by the prhbition.

So if the latter, a punishment that is very cruel but not unusual would not be prohbited, but the former it would be. Similarly if the latter a punishment that is not at all "cruel" but is unusual would be banned. E.g. if a US state wished to innovate and introduce New Zealand style restorative justice arrangements. — Preceding unsigned comment added by 82.153.111.160 (talk) 22:05, 25 March 2015 (UTC)

No, all cruel punishments are prohibited. Unusual would be more like a punishment that does not fit the crime, such as an excessive fine or sentence. Ratemonth (talk) 23:13, 25 March 2015 (UTC)

Sleeper not celled

http://time.com/3997439/department-justice-sleeping-public/

Notable yet, or wait for the courts? Hcobb (talk) 00:52, 14 August 2015 (UTC)

External links modified

Hello fellow Wikipedians,

I have just modified 2 external links on Eighth Amendment to the United States Constitution. Please take a moment to review my edit. If you have any questions, or need the bot to ignore the links, or the page altogether, please visit this simple FaQ for additional information. I made the following changes:

• Added archive https://web.archive.org/web/20131219015152/http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1090&context=lawreview to http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1090&context=lawreview
• Added archive https://web.archive.org/web/20131219062522/http://m.therepublic.com/view/story/scalia-judges/scalia-judges to http://m.therepublic.com/view/story/scalia-judges/scalia-judges

When you have finished reviewing my changes, you may follow the instructions on the template below to fix any issues with the URLs.

This message was posted before February 2018. After February 2018, "External links modified" talk page sections are no longer generated or monitored by InternetArchiveBot. No special action is required regarding these talk page notices, other than regular verification using the archive tool instructions below. Editors have permission to delete these "External links modified" talk page sections if they want to de-clutter talk pages, but see the RfC before doing mass systematic removals. This message is updated dynamically through the template {{source check}} (last update: 18 January 2022).

• If you have discovered URLs which were erroneously considered dead by the bot, you can report them with this tool.
• If you found an error with any archives or the URLs themselves, you can fix them with this tool.

Cheers.—InternetArchiveBot (Report bug) 19:51, 26 July 2017 (UTC)