In a very, um, tortured exchange on “60 Minutes” with Leslie Stahl, Justice Antonin Scalia argues that being tortured in prison is not a violation of the 8th Amendment’s prohibition against “cruel and unusual punishments” because it’s not punishment.
“To the contrary,” Scalia says. “Has anybody ever referred to torture as punishment? I don’t think so.”
“Well, I think if you are in custody, and you have a policeman who’s taken you into custody…,” Stahl says.
“And you say he’s punishing you?” Scalia asks.
“Sure,” Stahl replies.
“What’s he punishing you for? You punish somebody…,” Scalia says.
“Well because he assumes you, one, either committed a crime…or that you know something that he wants to know,” Stahl says.
“It’s the latter. And when he’s hurting you in order to get information from you…you don’t say he’s punishing you. What’s he punishing you for? He’s trying to extract…,” Scalia says.
Jim Henley replies with a quizzical initialism wherein the last letter stands for a word that’s simultaneously quite commonly used and yet not printable in a family newspaper.
My reading of Scalia, however, is that’s he’s being pedantic rather than obtuse. That is, punishment in the sense of the 8th Amendment is something that has been imposed on you by due process of law by the state. So, deprivation of liberty for a period of time, loss of the right to vote, and so forth are punishment. A prison guard’s beating the hell out of the prisoners out of sadistic cruelty, inmates raping weaker inmates, and so forth is not “punishment” but rather misconduct. Similarly, detainees tortured for intelligence information aren’t being “punished” for any transgression.
That said, state-imposed torture is clearly forbidden by the 8th Amendment. The Supreme Court ruled way back in the 1878 case of Wilkerson v. Utah that,
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 drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.
More generally, the Court has rather consistently held that the clause is a moving target, requiring “civilized treatment,” preservation of “the dignity of man” and that punishment be “exercised within the limits of civilized standards.”
