Cruel and Unusual Punishment, If You Say So Pt1

Most folks concur with the Constitutional prohibition on cruel and unusual punishment. Too bad nobody knows what this is.

What started as a good idea morphed into a total philosophical mess with the public held hostage. On one side of the argument are the conservatives screaming for capital punishment and lengthy prison terms. The liberals clamor for rehabilitation. Each decade the prevailing consensus seems to sway one way or the other. I use the term consensus only in the sense of the powers that decree thus is such.

Before we try to determine what is cruel and unusual, we first have to determine what is crime. The simple explanation would be harm to property, preson or possession. Perhaps we need to expand this to include possessions held in common by the populace. The question that remains is are their any other crimes. If we include inciting others to violence, we have to include ordering soldiers to war. How about theft? Would this not include eminent domain and tax foreclosure? Does calling it public good make it right?

Don't get the idea that I'm a Libertarian. It is a failed philosophy just as much as Hegel's or Adam Smith's fo that matter. All philosophies have something to teach us, but they all depend upon a compulsive and instinctual social imperative by the complete membership of a community to be actualized. Ain't a'gonna happen.

We still have to consider the so-called victimless crimes. These include prostitution, substance ingestion, conceled weapons carry, public nudity and several others. What is the criteria for harm determination?

So now that we have an idea of what constitutes crime, what would be cruel and unusual punishment for each type of crime. Would it not be logical to fit the punishment to the crime? If the punishment fails to match the crime, I would tender that it is cruel and unusual. If the punishment isn't applied fairly to everyone that commits the same crime, then once again, we have cruel and unusual.

I can just hear the howls of outrage. What about mitigating circumstances? What about the manner of the crime? How about the character of the perpetrator?

I killed him because he abused me for years. You killed him, plain and simple. He chopped her head off with an axe. He killed her, plain and simple. He's a pillar of the community and this was just an unfortunate lapse. He committed the crime, plain and simple.

In each of these cases, the harm was caused. Everything else is just a coward's excuse. The perps are afraid of the punishment for the harm they know they caused.

If we are to consider what are deemed capital crimes, all of these are violent. The question then becomes one of the probability of rehabilitation. If high, rehab. If low, then any return to society is out of the question. A return offender for the same crime is proof of inability to be rehabilitated.

We, as society, have two options. Death or banishment. Can death be cruel and unusual? Everybody dies and those who participate in dangerous vocations and hobbies are aware that their actions might cause premature death. If you cry out "choice is the difference", didn't the perp choose to engage in a crime with the knowledge that society might get pissed off? Prison is not banishment. In prison, the perp retains a substantial benefit from society while society gains nothing in return. Is this not theft of services?

End of part 1