Is cruel and usual punishment constitutional? The U.S. Constitution’s bill of rights prohibits “cruel and unusual punishment”. I am asking about a catch: cruel and usual punishment. If a punishment were determined to be cruel but is commonplace would it be constitutional?
As a preliminary note, the mandate that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” can be interpreted two ways, (a) prohibiting punishments which are cruel as well as those which are unusual, or (b) prohibiting just those which are both cruel and unusual. The courts have not interpreted this to have meaning (b), even though "cruel and unusual" is a fixed phrase repeated in court rulings. In various cases where the "cruel and unusual" clause is invoked, e.g. Solem v. Helm, 463 U.S. 277, Weems v. United States, 217 U.S. 349, Robinson v. California, 370 U.S. 660, Lockyer v. Andrade, 538 U.S. 63 the courts consistently analyze the punishment in terms of being jointly "cruel and unusual", and never consider the possibility that a punishment might be cruel but usual, or unusual but not cruel. The prohibition derives from the pre-American "cruell and unusuall Punishments" provision of the English Declaration of Rights, analyzed in Harmelin v. Michigan, 501 U.S. 957, which provides "[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted". The court observes that cruel punishments can indeed be quite common, for example But the vicious punishments for treason decreed in the Bloody Assizes (drawing and quartering, burning of women felons, beheading, disembowling, etc.) were common in that period -- indeed, they were specifically authorized by law, and remained so for many years afterwards. The court concludes from its historical analysis that "unusual(l)" in the context of English common law really means "illegal", i.e. "contrary to Law and ancient practice," without "Precedents" or "express Law to warrant," "unusual," "illegal," or imposed by "Pretence to a discretionary Power."
This is totally, flat out wrong. Quite frankly, it is immoral, although not illegal, for the producers to even cause some viewers to believe it is true. The United States criminal code (Title 18) in Chapter 77, prohibits all forms of slavery (except as punishment for a crime which New York State does not authorize) including the one described. It is not legal. This statute implements the 13th Amendment to the U.S. Constitution (abolishing slavery except as punishment for a crime) and was enacted under the enforcement authority provided by that statute. Those statutes have been in force for more than a century. For example, 18 USC § 1590 states: (a)Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both. (b)Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a). Similarly, 15 U.S.C. § 1584 is squarely on point: (a)Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both. (b)Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties described in subsection (a). It also would constitute criminal child endangerment, child abandonment, use of a child to commit a controlled substances offense, conspiracy to commit criminal coercion, conspiracy to have a child engaged in illegal child labor, etc. Possession of controlled substances by the mother is also a crime, although that crime was committed before the mother tried to sell her child to pay her drug debt. (I originally also included crimes like sex trafficking and pimping a child, but from the question it does not appear that the facts implicated those offenses.) It would also constitute grounds to civilly terminate the parental rights of the mother for child abuse and/or neglect, because it violated laws in addition to criminal laws. If the child had a living father whose parental rights had not been terminated (one can't tell from the question, but perhaps the full episode made it clearer), it would violate the father's right to custody of his child. The child, though a guardian or as an adult, could sue the mother for intentional inflection of emotional distress/outrageous conduct, false imprisonment, failure to provide support, etc.
Yes. In some common law jurisdictions, such as Canada, the United Kingdom and even some U.S. states, the government may under some circumstances refer a legal question to the appropriate Supreme Court (Privy Council in the U.K.) for an advisory opinion. These opinions are non-binding, but have large influence because they are often made by the same judges that would otherwise end up dealing with the question should it occur in a case. One common law country in particular stands out in this field: Ireland. Under Article 26 of the Irish Constitution the President may, with some exceptions, refer a bill to the Supreme Court to test its constitutionality. The referral is optional, but once made, the Supreme Court's decision is binding. The relevant portion: 3 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill. [...] 3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced. This power was last used successfully in 2004.
As others have said, the reason for this is that the US Constitution grants a jury trial as a right in criminal proceedings. The reason for that right to be granted is to be a check against (that is, a limitation of) the power of the government, generally, and judges, specifically. To answer your specific question of why &quot;the judge system is not reformed and stays like this and is more vulnerable to take a wrong decision because they do not know the law, thus the verdict depends on people’s morals?&quot; Firstly, the jury does know the law (or at least, the specific portions of the law that are relevant to the case), by the time they render their judgement. An important part of the judge's responsibility in a criminal case is to craft &quot;jury instructions&quot; that are given to the jury before they are sequestered for deliberations. These instructions should have an explanation of what questions they need to collectively answer, and what evidence they can and cannot consider. Secondly, there are two central dogmatic difference between the points of view that your question seems to promote or be based on, and the one generally held by the US Founding Fathers, who wrote the US Constitution. Your question seems to assume that: judges are sacrosanct, or at least trustworthy; and rule by law is the foremost concern In contrast, the general view of the US Founding Fathers was that: judges have power, and thus need to be checked (in the US system, a judge's power is checked by the prosecutor, the jury, the chief executive, and by courts of appeal); and protection of the citizenry from the power of the government is the first concern. One thing to note, is that this second point means that the judge in a US trial can actually override a criminal jury, but only in the defendant's favor.
In the United States, the constitutionality of a law can be challenged in any court. Unless and until the court is reversed by a higher court, then the law will be considered unconstitutional and invalid. A jury can also theoretically nullify a law for any reason, including unconstitutionality, however, the jury's finding will only hold for that one case that they are trying.
I know of no specific provision of the Constitution that would forbid it. I know of no court case in which it has been found unconstitutional. There's no "irony" clause in the Constitution. Taxation without representation may have been a grievance, but there's no inherent reason why the framers would have had to forbid it. US citizens do still have the "freedom to expatriate" (and avoid taxation) if they renounce their citizenship. There are already other examples of "taxation without representation" in US law (e.g. District of Columbia), which also have not been found unconstitutional in court, as far as I know. In many cases, expatriates can still vote for federal offices, including Congress (e.g. in a state where they used to live, or where a parent used to live). See https://www.fvap.gov/citizen-voter/registration-ballots. The Sixteenth Amendment gives Congress the power to "lay and collect taxes" with few limitations. There is certainly no explicit exception for expatriates. As far as I can tell, it would be constitutional if Congress were to impose an income tax on everybody in the world, regardless of residency or citizenship; it would just be hard to enforce.
No, but the legislature can (and does) Many jurisdictions have mandatory sentences where there is no judicial discretion in sentencing. In effect, the sentence is known when the charges are laid - if the defendant is found guilty.
No, each state is a "sovereign" and whenever a statute describes a crime it is always some act committed by a "person" and these two categories are mutually exclusive. See, for example, US Supreme Court in U.S. v. United Mine Workers of America, 330 U.S. 258, 67 SCt 677 (1947): "In common usage, the term `person' does not include the sovereign and statutes employing it will ordinarily not be construed to do so." Repeated by US Supreme Court in Wilson v. Omaha Indian Tribe 442 US 653, 667 (1979): "In common usage, the term 'person' does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it."