The Eighth Amendment, which prohibits “cruel and unusual punishment,” has always given constitutional scholars some difficulty regarding who is the proper actor to determine its meaning. The task of interpreting the Constitution traditionally falls to the courts, but for judges to apply their personal analysis of “cruel and unusual” seems arbitrary and more than a little undemocratic. Judicial analysis of community standards seems no less reliable, and rather paternalistic to boot, as well as anathema to opponents of a “living Constitution.”
But then again, if the Founding Fathers intended to give voters the power to determine what punishments are cruel and unusual, they will elect representatives who share their principles and will enact their judgments into law — so why even include such a prohibition in the Bill of Rights?
Against this backdrop, I’d suggest that the Constitution’s ban on cruel and unusual punishment tells us more about the Founders’ values than their take on this separation-of-powers difficulty. They had seen firsthand how a tyrannical government could use threats of harsh punishment to keep its subjects in line. Regardless of who should define “cruel and unusual,” the Eighth Amendment reminds us that when a government’s thirst for retribution trumps its sense of proportionality, nothing less than our fundamental liberty is threatened. And because a government, left uncontrolled, will always seek severe penalties for those who violate its laws, it’s up to us citizens to safeguard the principle that the punishment should fit the crime.
Unfortunately, America has lost interest in proportionality as an ideal. Nowhere is this more evident than in the debate over immigration.
No matter what travails undocumented immigrants and asylum seekers face — inhumane detention, family separation or even death while crossing — the standard justification by advocates of a harsh approach is that these immigrants broke the law and deserve to face the consequences. In response, defenders of immigrants frequently emphasize their moral blamelessness, having been forced to flee their countries to protect their families. But as respectable as that approach is, it still cedes too much. We shouldn’t have to maintain that an immigrant has never done anything wrong in their life to claim that they shouldn’t be abused, mistreated and ripped away from their children. Not every crime rises to a level that would justify such a massively disproportionate response. And the rampant sexual assault and child abuse complaints in migrant detention centers reinforces the fact that conduct that would be condemned in any other context is ignored when it happens to “criminals.”
Nor is the principle of proportionality some rigid Levitical rule. Our legal system has come a long way from “an eye for an eye,” when robbers would lose their hands and blasphemers their tongues. But some people are still convinced that for a law-abiding immigrant, whose only crime was unlawful entry, the “proportionate” response is to deport her, even when federal authorities know full well that they are sending her to her death. There is no principle of right nor of law that forces our hand and justifies condemning defenseless women and children to death. Our government is strong enough that it can afford to temper justice with mercy.
The belief that any punishment is justified if someone breaks a law underscores a fundamental shift in the way that Americans think about the law and the people who break it. “Criminal” means more than just someone who acts illegally. In our culture, as in many, it carries a value judgment that marks someone as a “bad person,” in addition to factually describing their conduct.
We know this intuitively — it’s why, for example, we’re familiar with Rosa Parks breaking a law in Alabama, but we would hardly call her a “criminal.” Though courts may assign a punishment, we the public decide whether to affix the label of criminality; in doing so, we pass judgment on its propriety, and on the defendant’s worth.
However, when we set aside our own assessment of a crime’s severity, culpability and justification in favor of a court’s purely legal judgment, we reinforce a distinction between “us” and “them,” the criminals and the law-abiding citizens, that we cannot maintain. None of us can really believe that any transgression, however minute, can justify any punishment, however severe.
Indiana state law is broken on and off Notre Dame’s campus countless times every weekend. Drivers in my home state of California treat speed limits as suggestions at best and minimums at worst. You might think these crimes are less severe than immigration violations. But we also have much less compelling reasons to break them. Why shouldn’t that determine culpability and punishment?
At the end of the day, it’s not about breaking the law. The debate over immigration enforcement, over family separations and toothbrushes and zero-tolerance and detention camps, is a conflict over who deserves proportionality when they break the law — the belligerently intoxicated college sophomore who ends up with a warning from his RA — and who doesn’t — the migrant mother and child fleeing violence and seeking asylum, only to find themselves in prison.
America’s founders knew that for a society to be truly free, everyone deserves freedom from cruel and unusual punishment. We must restore this sense of proportionality to our discourse to move towards liberty and justice for all.
Patrick Aimone is a sophomore in Sorin who enjoys thinking about the Supreme Court. He writes for, but his opinions do not represent those of, BridgeND, a multi-partisan political club committed to bridging the partisan divide through respectful and productive discourse. It meets on Mondays at 5 p.m. in the McNeill Room of LaFortune Student Center to learn about and discuss current political issues, and can be reached at [email protected] or on Twitter @bridge_ND.
The views expressed in this column are those of the author and not necessarily those of The Observer.