We all know about the tortures that took place at Abu Ghraib prison. However, Justice Scalia explains to us that torture does not offend the US Federal Constitution. As Justice Scalia explained to us, the Eighth Amendment says
cruel and unusual punishments [shall not be] inflicted
and torture is not punishment. In fact, as Justice Scalia explains to us, one is punished for something he/she has committed in the past. For example: "I caught my child smoking, so as a punishment I took away his mobile phone". But "torture" is not an infliction of a damage to make the accused pay for something he/she committed in the past, or to elicit someone to refrain from committing that offense again. This is not the purpose of torture. The purpose of torture is to extort information useful for a future criminal investigation. The explanation that Justice Scalia gave to us is consistent with the defition of punishment (remember, the Eight Amendment prohibits "cruel and unusual punishments") that BF Skinner gave to us in his operant conditioning theory:
Positive punishment: Providing a stimulus that an individual does not desire to decrease undesired behaviors. For example, a child hates to do chores. His parents will try to reduce the undesired behavior of failing a test by applying the undesired stimuli of having him do more chores around the house. Negative punishment: Removing a stimulus that an individual desires in order to decrease undesired behaviors. For example, a child loves playing video games. His parents will try to reduce the undesired behavior of failing an exam by removing the desired stimulus of video games.
It's worth noting that BF Skinner was not a lawyer. He was a psycologist whose greatest achievement was having a Simpsons character named after him.
Commented Nov 22, 2020 at 22:45The prisoner is, by the definition you present, being punished. Not for any crime, but for their refusal to speak. But let's assume for the sake of argument that the Eighth Amendment doesn't apply. It would still appear to be unconstitutional.
The Fifth Amendment states:
No person shall. be deprived of life, liberty, or property, without due process of law
and the Fourteenth Amendment applies this to the states:
. nor shall any State deprive any person of life, liberty, or property, without due process of law
If we assume that the torture is not punishment after the conviction for any crime, but is being used for some other criminal prosecution (not of the person being tortured, of course, since forcing self-incrimination is also banned by the Fifth Amendment) then you run into the problem that the person being tortured is being deprived of liberty without due process.
This is even indicated in a footnote in Ingraham v. Wright:
. the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.
As a backup argument, the Fourth Amendment states:
The right of the people to be secure in their persons. against unreasonable searches and seizures, shall not be violated
Torture would be considered an unreasonable search or seizure of a person. It's the go-to in more ordinary police brutality cases. And the Supreme Court has held that the Fourth Amendment can apply to pretrial detention (Manuel v. Joliet, 2017) so it's not limited to just the initial seizure of the person.
answered Oct 23, 2022 at 2:19 7,233 12 12 silver badges 36 36 bronze badgesThe Eighth Amendment to the United States Constitution states that "cruel and unusual punishments [shall not be] inflicted." The general principles that the United States Supreme Court relied on to decide whether or not a particular punishment was cruel and unusual were determined by Justice William Brennan. In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan dissenting wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
The Supreme Court has held torture to be unconstitutional since its ruling in Wilkerson v. Utah in 1878. In that case, the justices wondered what part of the Constitution would forbid such a cruel and unusual punishment:
Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.
In the 2008 death-penalty case Baze v. Rees, where Chief Justice John Roberts wrote that:
"the Court has held that the Eighth Amendment forbids 'punishments of torture … and all others in the same line of unnecessary cruelty,' such as disembowling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain for the sake of pain."
18 U.S. Code § 2340A.Torture
(a)Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b)Jurisdiction.—There is jurisdiction over the activity prohibited in subsection (a) if— (1)the alleged offender is a national of the United States; or (2)the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c)Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
Oliver Ravel, former deputy director of the FBI, has stated that force is not effective: "people will even admit they killed their grandmother, just to stop the beatings." Indeed, the unreliability of forced confessions was one of the principal reasons that U.S. courts originally prohibited their use.