I was more than a little surprised when what I thought was a reasonably uncontroversial item in yesterday’s Missing Link elicited a heated response from frequent Troppo commenter and erudite legal eagle Patrick Fitzgerald. The item concerned arch-conservative US Supreme Court Justice Antonin Scalia, high priest of “originalism” in constitutional interpretation and a seemingly enthusiastic Dershowitz-style supporter of the virtues of torture as an instrument of US policy. Here’s the item that drew Patrick’s restrained ire:
For those (like me – KP) who once marvelled at the occasionally bizarre logic of (now retired) arch-conservative High Court Justice Ian Callinan, this note from Hilzoy may give you cause to see him as a veritable beacon of Enlightenment Rationalism by comparison with US Supreme Court Justice Antonin Scalia.
Hilzoy’s post commented on a press interview Justice Scalia recently gave where he commented on torture in apparently approving terms. However, Patrick asserted, Scalia was merely explaining uncontroversial “settled law” that torture for purposes of interrogation (as opposed to as part of a sentence imposed after a finding of criminal guilt) could not be “cruel and unusual punishment” for the purpose of the Eighth Amendment to the US Constitution.
It was news to me but, not claiming an encyclopedic knowledge of American constitutional law, I thought I’d better check before responding. In fact, as far as I can see there has never been a US Supreme Court decision holding that torture of a suspect during interrogation cannot be “cruel and unusual punishment” for constitutional purposes. The closest precedent is a 1976 5/4 majority decision in Ingraham v Wright, which held that corporal punishment administered to school students could not be “cruel and unusual punishment”. Quite a long way from torture of terrorism suspects in lawful US custody one might think, and on the face of it readily distinguishable if a subsequent Supreme Court bench was so minded.
Nevertheless, at least the wide (and fairly widely accepted) version of the majority ratio decidendi provides support for Patrick’s position:
[T]he Court explained that the cruel and unusual punishments clause ”circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.”
However, the 4 Minority Justices noted that this was inconsistent with a series of earlier Supreme Court decisions holding that conduct associated with the criminal justice system but not itself constituting the sentence (or formally imposed “punishment”) could nevertheless be “cruel and unusual punishment” for constitutional purposes:
In Estelle v. Gamble, 429 U.S. 97 (1976), a case decided this Term, the Court held that “deliberate indifference to the medical needs of prisoners” by prison officials constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Such deliberate indifference to a prisoner’s medical needs clearly is not punishment inflicted for the commission of a crime; it is merely misconduct by a prison official. Similarly, the Eighth Circuit has held that whipping a prisoner with a strap in order to maintain discipline is prohibited by the Eighth Amendment. Jackson v. Bishop, 404 F.2d 571 (1968) (Blackmun, J.). See also Knecht v. Gillman, 488 F.2d 1136, 1139-1140 (CA8 1973) (injection of vomit-inducing drugs as part of aversion therapy held to be cruel and unusual); Vann v. Scott, 467 F.2d 1235, 1241241 (CA7 1972) (Stevens, J.) (Eighth Amendment protects runaway children against cruel and inhumane treatment, regardless of whether such treatment is labeled “rehabilitation” or “punishment”).
Despite the apparent breadth of expression of the majority’s ratio, and although I would certainly advise any client that the Ingraham majority position would more than likely be upheld at least by the current conservative SCOTUS majority, there is clearly scope for a future ruling that torture for purposes of interrogation is “cruel and unusual punishment” even if corporal punishment at school isn’t. As the 4 minority Justices in Ingraham argued:
The Eighth Amendment places a flat prohibition against the infliction of “cruel and unusual punishments.” This reflects a societal judgment that there are some punishments that are so barbaric and inhumane that we will not permit them to be imposed on anyone, no matter how opprobrious the offense. See Robinson v. California, 370 U.S. 660, 676 (1962) (Douglas, J., concurring). If there are some punishments that are so barbaric that they may not be imposed for the commission of crimes, designated by our social system as the most thoroughly reprehensible acts an individual can commit, then, a fortiori, similar punishments may not be imposed on persons for less culpable acts, such as breaches of school discipline. Thus, if it is constitutionally impermissible to cut off someone’s ear for the commission of murder, it must be unconstitutional to cut off a child’s ear for being late to class. Although there were no ears cut off in this case, the record reveals beatings so severe that, if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster.
Nevertheless, the majority holds that the Eighth Amendment “was designed to protect [only] those convicted of crimes,” ante at 664, relying on a vague and inconclusive recitation of the history of the Amendment. Yet the constitutional prohibition is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution. Certainly, the fact that the Framers did not choose to insert the word “criminal” into the language of the Eighth Amendment is strong evidence that the Amendment was designed to prohibit all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed.
No one can deny that spanking of school children is “punishment” under any reasonable reading of the word, for the similarities between spanking in public schools and other forms of punishment are too obvious to ignore. Like other forms of punishment, spanking of school children involves an institutionalized response to the violation of some official rule or regulation proscribing certain conduct and is imposed for the purpose of rehabilitating the offender, deterring the offender and others like him from committing the violation in the future, and inflicting some measure of social retribution for the harm that has been done.
A fortiori with interrogatory torture. Torture bears both punitive and interrogatory facets. Prisoners are tortured not only to extract information or a confession (in fact it’s a notoriously unreliable method of doing so) but as a punishment for refusing to answer previous questions. Moreover, torture is much more intimately bound up with the criminal justice process than is corporal punishment of school children. Almost by definition a victim of torture by US authorities will be in lawful custody under suspicion of commission of a crime. There is no less reason to extend the protection of the Eighth Amendment to cover pre-conviction torture during interrogation than there is to extend it to post-conviction “deliberate indifference to the medical needs of prisoners” by prison officials.
Moreover, not only is the Ingraham majority’s textual support for its claim that “punishment” encompasses only the elements of criminal sentencing rather weak (as the minority noted, the Eighth Amendment does not qualify “punishment” by “criminal”), but the historical evidence for such a restricted meaning, so supposedly sacred to the “originalist” Scalia, also appears distinctly dubious As the minority Justices note, the majority rely on “a vague and inconclusive recitation of the history of the Amendment”. They assert that the Eighth Amendment was copied from the UK Bill of Rights 1689 (as it clearly was), that the British only intended to cover judicially imposed criminal punishments and that therefore the US provision should be regarded as having a similarly limited meaning. While two modern historians are cited as authority for this proposition, the historical events mentioned as justification for the majority view are highly selective.
As “Gummo Trotsky” noted in a comment in response to Patrick, Justice Scalia’s “originalism” is an extremely artificial species of constructivism, buttressing the subjective preferences of judges with selective appeals to history designed to give them a spurious aura of unchallengeability. The Ingraham majority’s recitation of relevant historical events makes no mention, for example, of the fact that a central concern of the drafters of the Bill of Rights 1689 was the danger of nefarious acts by “Popish princes”. Freedom of religious worship (at least for Protestants) was a primary motivation. Moreover, the British in 1689 remained obsessed by the (somewhat exaggerated) horrors of the Spanish Inquisition and its torture of Protestants:
In order to interrogate the accused, the Inquisition made use of torture, but not in a systematic way. It was applied mainly against those suspected of Judaism and Protestantism, beginning in the 16th century. For example, Lea estimates that between 1575 and 1610 the court of Toledo tortured approximately a third of those processed for heresy. In other periods, the proportions varied remarkably. Torture was always a means to obtain the confession of the accused, not a punishment itself. It was applied without distinction of sex or age, including children and the aged.
The methods of torture most used by the Inquisition were garrucha, toca and the potro. The application of the garrucha, also known as the strappado, consisted of suspending the criminal from the ceiling by a pulley with weights tied to the ankles, with a series of lifts and drops, during which arms and legs suffered violent pulls and were sometimes dislocated. The toca, also called tortura del agua, consisted of introducing a cloth into the mouth of the victim, and forcing them to ingest water spilled from a jar so that they had impression of drowning (see: waterboarding).
Given that the Bill of Rights 1689 was a product of the fears and concerns of 16th century Protestants, it isn’t entirely implausible that their fears about an imagined Catholic propensity towards torture might have at least partly informed the deliberately vague reference to “cruel and unusual punishment”.
No-one can really be certain in the absence of clear explanations from those who actually wrote and enacted the Bill. And that’s almost always the problem with constitutional “originalism”. Although it is certainly an influential approach to constitutional interpretation, especially under Scalia’s patronage, it is also frequently a dubiously reliable guide to meaning. Indeed the most influential approach to interpretation generally has been legal realism:
Those who are realists about law, and more particularly, courts, think that the kinds of “legal reasons”–appeals to doctrine, precedent, statutory text, and the reasoning by analogy, by which courts bring the doctrine etc. in to contact with the facts of a case–that judges offer in their opinions largely obscure the actual grounds of decision. Legal reasons don’t really explain the decisions; legal reasons are often indeterminate, and equally good legal arguments can be given for very different outcomes. What really explains the decision is the judge’s commitment to non-legal norms (moral, political, economic).
My colleague Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: “Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice.” (For a detailed case in support of this view, see his book on The Warren Court and American Politics [Harvard University Press, 2000].) Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.
As a recently professed enthusiast for the virtues of officially sanctioned torture in interrogation, it is difficult to believe that Scalia’s political and ethical views do not strongly colour his assertions about the scope of “cruel and unusual punishment”. Justice Scalia is a clever judicial bully who does not merit Patrick’s deference.