Cruel Punishment Research Articles

Montgomery's Messy Trifecta

Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law. First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments. Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications. Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.

Cruel and Usual Punishment

Cruel and Usual Punishment

Dostoevsky and Tokarzewski: Two Sides of the Same Plot Model

The paper considers the correlation between two literary works about Siberian hard labour: F. Dostoyevsky’s The House of the Dead and S. Tokarzewski’s memoirs Seven Years of Hard Labour. The authors use a comparative method to identify the archetypes present in each work. They establish that the difference in the archetypes is predetermined by contrasting attitudes to the same labour camp: their opposed perceptions of the same plot are based on the mythologisation and demythologisation of prison respectively. The Polish patriot’s view of his imprisonment in Siberia as nothing but cruel punishment which he endured with great courage resulted in a projection of martyrdom in his memoirs. The Russian writer’s exile in Siberia, however, had a sacral significance in line with the Russian national tradition. Gaining new knowledge by passing through death becomes the mythological basis for the so-called “image from a distance” found in The House of the Dead. Its analytical plot is the main factor for regarding this text as a novel on the one hand, and part of the hagiographic tradition on the other.

‘Their Way of Punishing’ Corporal Punishment by Indigenous Peoples and the Prohibition of Torture

Both the right of indigenous peoples to cultural integrity and the prohibition of torture and other cruel, inhuman and degrading treatments and punishments are vital features of the character of modern international law. However, these two essential components of modern international law do not always appear to see eye to eye with regards to corporal punishment as a criminal sanction in indigenous communities. Practices such as flogging and the stocks would normally be considered to fall within the torture spectrum or at least some kind of cruel, inhuman or degrading treatment or punishment under the various international instruments covering such crimes. However, notions of cultural integrity and identity cause uncertainty as to what status these practices should actually have in the context of indigenous peoples' rights. This article seeks to explain and offer a way to solve this disagreement. Specifically, while claiming that indigenous corporal punishment should be judged under the same standard as any other form of corporal punishment, it also proposes that, instead of a merely punitive approach, states should seek to establish transitional consultation processes under ILO Convention 169 to seek to discourage indigenous practices that breach international standards.

The State Obligation to Prevent Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: The Case of Honour-Related Violence

Traditionally, international human rights law was concerned only with torture perpetrated or directly condoned by the State. There has however been a development towards including equally serious acts by private individuals in the concept of torture. The present article explores the implications for the prevention of honour-related violence. It establishes that States have an obligation under international human rights law to prevent private acts of violence in certain circumstances, moves on to examine whether honour-related violence can violate the prohibition of torture or other cruel, inhuman or degrading treatment or punishment and concludes by discussing the obligation to prevent those forms of honour-related violence which violate the prohibition. © The Author [2015]. Published by Oxford University Press. All rights reserved. For Permissions, please email: [email protected]/* */ Language: en

A Change of the u.s. Position Regarding the Extraterritorial Prohibition of Torture – Is It a Breakthrough?

The author presents and analyses u.s. position regarding the extraterritorial application of the prohibition of torture before and after the change that occurred in November 2014 the Committee Against Torture. At that forum the u.s. stated that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 applies to “all places that the State party controls as a governmental authority”. This new test immediately gave rise to a lot of controversies and discussions on its exact meaning. As the author indicated it seems to be narrower than the test of effective control adopted in the jurisprudence of the European Court of Human Rights. The article also contains the review of this jurisprudence.

Dead (and Innocent) Men Walking: Will Foster v. Chatman Mark the Beginning of the End for the Death Penalty?

The death penalty is a cancer on this country’s legal system, particularly its commitment to fairness, due process, and equal protection of the law. Whether it is the number exonerations, the mental illnesses and neurological disorders of inmates who are executed, the problems with lethal injection procedures, the ability of judges to Alabama to override a jury’s recommendation of life imprisonment, the quality of defense counsel, or the substantial barriers to meaningful appellate review, the death penalty is plagued with problems that make its existence contrary to any sense of common decency. Put simply, to the extent that death is really different, the most significant difference is the unfairness and arbitrariness with which it is imposed. When the Supreme Court decides Foster v. Chatman, it should not merely focus on whether the prosecution violated Batson v. Kentucky when striking all African-Americans from the jury pool. The Court should remember the words spoken by Justice Brennan in Gregg v. Georgia and Justice Breyer in Glossip v. Gross and hold that the death penalty constitutes cruel and unusual punishment. In so doing, the Court will breathe life into the notion that the “arbitrary imposition of punishment is the antithesis of the rule of law.”

Napoleon Reversing the French Revolution.

Napoleon Bonaparte turned France into a police state during his reign.[1] However, he did not continue the French Revolution as the French people hoped. The French Revolution brought forth liberty and to do as ones will if it does not harm another.[2] A new document brought by the French Revolution embodying these principles was the French Declaration of Rights of Man and Citizen in 1789.[3] This Declaration stated under article 11 that there was to be a free flow of ideas and opinions in writing and the press.[4] Article 7 outlawed any cruel harsh punishment and arbitrary sentencing.[5] However, Napoleon reversed these fundamental principles of the French Revolution. Writers, the press, along with the French people were subjected to the General police and prefects and were banned from saying anything controversial, against his regime, anything about France’s revolutionary past, and against France’s allies.[6] Arbitrary, cruel punishments, and harsh rules were enacted by Napoleon through the Penal Code in 1810.[7] Napoleon did not continue the French Revolution and reversed it by turning France into a police state and monitored and censored the French people, the press, and writers.

Social Representation, Causes and Prevention of Sexual Violence in High School Students

The present study explored the social representation of sexual violence, the prevailing attitudes, and sex, city of belonging, and school year effects. The sexual violence representation of our sample was characterized by opposing and often contradictory thoughts. Results suggested that in general, sexual violence has been considered as an “imposed sexual act with physical force” caused by lack of consideration other's right. The sample describes as a possible cause of rape is a lack of consideration of human rights, whether a culture of sexuality improper. Students of Ragusa than those of Catania have a stereotypical image of man “predator” and woman “prey” perhaps becauseof culture and system of values. Students believe that it is useful to adopt educational methods that promote respect for their own and others, but also the use of cruel punishment.

A Theory that Beats the Theory? Lineages, the Growth of Signs, and Dynamic Legal Interpretation

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one.The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time.In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”.

Smoking Bans Are Associated with Mortality Benefits Among the Incarcerated

The U.S. Supreme Court has indicated that exposing nonsmoking prisoners to secondhand smoke can be construed as “cruel and unusual punishment” ( Helling v. McKinney, 509 U.S. 25 [1993]). In response, many states have enacted prison tobacco control policies, including bans on smoking. To determine whether such bans are associated with reductions in smoking-related mortality, …

No Child Left Alone: Why Iowa Should Ban Juvenile Solitary Confinement

In 2012, the United States Supreme Court held in Miller v. Alabama that the mandatory imposition of life without parole on a juvenile offender was a violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause. In its rationale, the Court relied on scientific research, distinguishing the mental faculties between juveniles and adults and emphasized juveniles’ ability to change. The Court has used scientific research in a string of opinions over the last decade to reframe the goal of juvenile sentencing reform — rehabilitation. In the interest of rehabilitation, states should prohibit imposing solitary confinement on juvenile inmates. Solitary confinement has cruel and unusual consequences for juveniles and serves no penological purpose, making its use a violation of the Eighth Amendment. Thus, the Iowa Legislature should enact legislation prohibiting correctional facilities from using juvenile solitary confinement, except for the limited circumstance in which the facility can use no other measure to protect the juvenile from immediately and substantially harming others. Even then, confinement must follow strict guidelines to eliminate the risk of misuse and psychological harm to juveniles. A system where facilities only use juvenile solitary confinement to prevent an offender from committing immediate, substantial harm to others is consistent with the goal of rehabilitation, the trend in the Court’s decisions, and the Eighth Amendment.

Complementary Protection in Australia two Years on: An Emerging Human Rights Jurisprudence

Since 24 March 2012, asylum seekers whose claims are processed in Australia have been able to claim protection on broader grounds than those contained in the Refugee Convention. This is known as ‘complementary protection’. Complementary protection provides protection to those who face a real risk of arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or degrading treatment or punishment if removed from Australia. This article provides an in-depth analysis of complementary protection in its first two years of operation in Australia. It examines: (a) the kinds of factual scenarios giving rise to complementary protection; (b) case law developments in relation to the content of, and exceptions to, the complementary protection criteria; and (c) the extent to which Australia's approach reflects international practice.

Women and children versus domestic violence. Legal reflections, needs and challenges in Spain today

Violence against women and girls or gender-based violence is a form of discrimination that constitutes ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’. Violence against women has carelessly become a significant global public health problem affecting one-third of women in the world in 2013. Killings of women and girls by their male partners or ex-partners are not isolated incidents, but constitute ‘the ultimate act of violence that is experienced in a continuum of violence’. Gender-based domestic violence remains the most prevalent form of violence against women and girls that affects women of all social strata across the world. Violence against women, in the private sphere and in its different manifestations, is tantamount to violations of the rights to life, equality, dignity and non-discrimination, the right not to be subjected to torture and to other cruel, inhuman, or degrading treatment or punishment, the right to liberty and security of person, the right to equal protection under the law, and the right to equality in the family, among other human rights. In addition, children who are victims and witnesses of that gender-based domestic violence suffer adverse effects on their health and in other ways also are ‘severely negatively impacted by [that] violence’. However gender-based domestic violence measures to protect child victims and witnesses of gender-related domestic violence remain weak in spite of the undeniable consensus among States on rights applicable to child victims and witnesses of crime. This article provides an overview of the issue of gender-based domestic violence and analyses the consideration given to the woman and child (of that woman) – both victims of intimate-partner domestic violence under international law and regional European law, and, in addition, under Spanish domestic legislation. The article highlights the latest developments in those three legal settings, including the forthcoming entry into force of the challenging and most comprehensive legal instrument on violence against women in the world today, the Istanbul Convention. The Convention provides at last formal (through judicial practice and legal instruments) recognition of children who witness gender-based domestic violence as victims of that gender-based violence. Also reviewed are recent jurisprudence/judicial practice, legal developments and challenges on this important subject in Spain. Final recommendations based on the aforementioned international, regional and domestic analysis are made to the State of Spain, recommendations applicable indeed to the practice in any country seeking international human rights compliance, good practices and redress, in an effective fight against gender-based domestic violence.

Rabbinic Law between Biblical Logic and Biblical Text: The Pitfalls of Exodus 21:33–34

When the justices of the U.S. Supreme Court conclude that some law, or some decision of a lower court, violates the U.S. Constitution, no great difficulties of principle or sentiment need accompany their decision to abrogate the opinions of the earlier legislators or judges. The justices, and others, are expected to understand their decision either as correcting a mistake that had been introduced by fallible people who, with intentions good or bad, or unintentionally, had violated the system's basic rulebook, or as reflecting the fact that since the time those legislators or judges made their decisions something relevant (such as notions of “cruel and unusual punishment” or of what affects interstate commerce) had changed, so what was once constitutionally acceptable no longer is. Thus, however upsetting the substance of the justices’ decision may be, it need not imply a condemnation of their predecessors nor entail a disruption of the system's authority structures—as is seen in the fact that the justices, and American citizens, readily use such explicit verbs as “reverse,” “strike down,” or “overturned” for what the justices do

Castration laws: Marching towards imperfect justice.

Castration is an anthropogenic procedure by which the person loses the functions of the testicles or ovaries; it can be performed by surgery or by administering chemicals. The motivation was primarily eugenic, to weed out the "unfit" from the human gene pool. In 1996, California first introduced chemical castration under s 645 of the California Penal Code for child molestation and this legal template has spread globally to counter sexual offences. The anti-androgenic pharmacotherapy used for chemical castration includes cyproterone acetate or medroxy-progesterone acetate (Depo-Provera), which reduces testosterone levels and reduces male sexual urge and fantasies. However, the associated health hazards with anti-libido drugs put a question mark on such State sponsored penal response. Castration destroys human dignity, breaches the right of privacy and procreation and attracts the cruel and unusual punishment clause. The failed Oregon castration experiment and Moldova Court verdict in July 2013 indicate that the stage is set to right this wrong.

Death Penalty: The Present Day Threat to Human Life

The death penalty is not an act of self-defense against an immediate threat to life. It is the premeditated killing of a prisoner who could be dealt with equally well by less harsh means. There can never be a justification for torture or for cruel, inhumane or degrading treatment or punishment. The cruelty of the death penalty is evident. Like torture, an execution constitutes an extreme physical and mental assault on a person already rendered helpless by government authorities. The most common justification offered is that, terrible as it is, the death penalty is necessary: it may be necessary only temporarily, but, it is argued, only the death penalty can meet a particular need of society. And whatever that need may be, it is claimed to be so great that it justifies the cruel punishment of death. The death penalty, as a violation of fundamental human rights, would be wrong even if it could be shown that it uniquely met a vital social need. What makes the use of the death penalty even more indefensible and the case for its abolition even more compelling is that it has never been shown to have any special power to meet any genuine social need.

'Furiosus Solo Furore Punitur': Should Mentally Ill Capital Offenders Be Categorically Exempt from the Death Penalty?

Rather than continuing to use mental illness as a mitigating factor in determining sentencing of the capital offender, this paper argues that the Eighth Amendment’s protection from cruel and unusual punishments should be extended to cover capital offenders who suffer from debilitating mental illness. More specifically, if a convicted offender has a medically diagnosed mental disorder as outlined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition or other similar standard for psychological evaluation, he or she should be exempt from the possibility of the imposition of death as a punishment. This paper discusses the Supreme Court cases of Atkins v. Virginia, 536 U.S. 304 (2004), Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007) and Roper v. Simmons, 543 U.S. 551 (2005), and how to extend the Court's reasoning in those cases to cover mentally ill capital offenders.

FREEDOM OF CONSCIENCE AS RELIGIOUS AND MORAL FREEDOM

AbstractIn another essay being published contemporaneously with this one, I have explained that as the concept “human right” is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration's wake, a right is a human right if the rationale for establishing and protecting the right—for example, as a treaty-based right—is, in part, that conduct that violates the right violates the imperative, articulated in Article 1 of the Universal Declaration, to “act towards all human beings in a spirit of brotherhood.” Each of the human rights articulated in the Universal Declaration and/or in one or more international human rights treaties—for example, the right, articulated in Article 5 of the Universal Declaration and elsewhere, not to be subjected to “cruel, inhuman or degrading treatment or punishment”—is a specification of what, in conjunction with other considerations, the imperative—which functions in the morality of human rights as the normative ground of human rights—is thought to forbid (or to require). A particular specification is controversial if and to the extent the supporting claim—a claim to the effect that the “act towards all human beings in a spirit of brotherhood” imperative forbids (or requires)X—is controversial. My aim in this essay is to elaborate and defend a particular specification: the right, internationally recognized as a human right, to freedom of conscience—to freedom, that is, to live one's life in accord with the deliverances of one's conscience.

Sentencing Juveniles: Eliminate the Bright-Line Rule of Majority

The United States Supreme Court’s often stated view that “death is different” has led to a line of decisions in which the Court carved out categorical Eighth Amendment exceptions for certain groups. These cases hold that courts should not give the death penalty to individuals within those groups. In Atkins v. Virginia, for example, the leading case within the “death is different” line, the Court held that the death penalty was not an appropriate punishment for mentally retarded offenders because it constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court continued to carve out exceptions for certain groups including juveniles.Then the Court’s view regarding the Eighth Amendment’s prohibition against cruel and unusual punishment evolved. No longer was “death” the only “different;” now, juveniles could be considered “different.” Following Roper, in which the Court held that sentencing juveniles — those under the age of eighteen — to death constituted cruel and unusual punishment in violation of the Eighth Amendment, a line of cases emerged in which the Court continued to carve out more exceptions for juveniles.In each of these landmark decisions, the Court has found that to be considered a juvenile, the individual must be under the age of majority. As found in Roper, and consistently followed in the other decisions within this line of cases, the age of majority is eighteen. Although the Court acknowledged that there are some juveniles under the age of majority who have attained a level of maturity “some adults will never reach” and “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” the Court drew a line. Thus, the age of majority is a bright-line rule.Heeding the Court’s own words, it should recognize that juveniles who are aged seventeen and those aged eighteen arguably are no different. Research also suggests this to be true. This article argues, therefore, that because of the uncertainty surrounding “juvenile” brain development and because the bright-line rule of majority prevents courts from determining if an individual under the age of eighteen, the age of majority, has the requisite culpability deserving of the categorically excluded punishments, the Court should eliminate the bright-line rule of majority. Further, although the majority of juveniles should not receive certain categorically excluded harsh punishments, a few should still receive those punishments, and it should be an option for all. Part I of this article serves as background on the bright-line rule of majority and its application in “juveniles are different” cases. Part II of this article argues that the Court should eliminate the bright-line rule of majority. Part III of this article proposes a solution to the bright-line rule problem; that is, a case-by-case analysis should decide cases involving juveniles with age being another sentencing factor considered. Age will thus act as an aggravating or mitigating factor in the sentencing phase of the criminal proceeding. Finally, Part IV of this article explains why a case-by-case analysis considering age as a sentencing factor is better than a bright-line rule of majority and addresses the potential counter-arguments to this proposal.