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There is a segment here that reads:
This is a hard one to edit, but also hard to remove. My best attempt at an idea was to change "Because it is" to "If it were legally shown to be" or something indicating the need for a Judicial test-case relevant here..., but that sounded as if it would lack neutrality, somehow suggesting that the Eighth is ineffectual prohibit torture, or suggesting some non-neutral view of the Eight as facilitating torture somehow.
Although it does not literally prohibit torture outright, one might assume that the spirit of the amendment targets torture-like behaviour. However, like most constitutional law, it is open to interpretation and/or change in interpretation, something that many supreme courts, including the US supreme court, can do.
This is highlighted with Antonin Scalia's recent TV interview, where he illustrates that the general or majority view (elementary school teaching, for instance) that the spirit enshrined in the Eighth prohibits torture is, unfortunately, irrelevant to the Judicial interpretation of the Eighth. His point appears to be that "punishment" may not necessarily be torture, not because of any pain/psychological harm/etc.etc. involved in torture, but because punishment as it is often understood, suggests a Lawful Judgment that calls for a Punishment, i.e. the law cannot punish you in a cruel or unusual way. Although punishment has been understood by previous US supreme courts in previous cases to be far wider an encompassing term than Scalia's particular opinion, his views do suggest that a Bill specifying the fact outright may be appropriate, as a conservative supreme Judiciary would be unlikely to choose (it is their choice to hear cases, after all) to touch this issue with a 10' or more pole, so to speak.
Given the temporal flexibility of definition and interpretation of this amendment, and given that (to the best of my knowledge, feel free to enlighten me) the interpretation of this amendment in circumstances particular to torture by/through US citizens and/or agents of state has yet to be clearly defined, .....
....how are we to rewrite the original sentence without suggesting one way or the other as to it's applicability in cases of torture? We can't really say that it _does_ prohibit torture, but neither can we really say that it _does not_ prohibit torture. And when (as I have tried) we attempt to write it as an "IF", it unnecessarily becomes a "suspicious" sentence, indicating some subversive intent of the editor, one way or the other...
Can someone clear this up? It doesn't require constitutional interpretation, just a good linguistic understanding of how to properly reform this sentence to make it more ambiguous.
In this case, the ambiguous needs to be... well... ambiguous, really... In any case, the current sentence really needs work.
'nuff said. I write too much. Wernhervonbraun ( talk) 14:50, 4 May 2008 (UTC)
I noticed that this page says capital punishment was "effectively suspended" between 1967 and 1976. From what I gather it was actually from 1973 (or 1972, after Furman v. Georgia) but I'm not an expert on this. Is a change warranted? (I did a change but reverted since I wasn't sure.)
Why no history on the amendment itself? Who wrote it? What previous law(s) was it based on? What were the arguments surrounding its passage? More info would be nice. Tubbyty 19:48, 1 March 2006 (UTC)
Has any case ever dealt with the "excessive fines" clause? -- 85.179.164.64 ( talk) 00:09, 8 January 2008 (UTC)
Why is this original research?
In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, took the following position: "what was 'cruel and unusual' under the Eighth Amendment was to be determined without reference to the particular offense." Scalia and Rehnquist pointed to the text of the Eighth Amendment, which prohibits "excessive fines" — that provision regarding excessive fines would have been superfluous, according to Scalia and Rehnquist, if the "Cruel and Unusual Punishments" clause also prohibited excessive punishments.
Shouldn't it be mentioned somewhere in the article why some judges disagree that the Eighth Amendment includes a proportionality requirement? Ferrylodge ( talk) 02:11, 4 July 2008 (UTC)
Before making edits, click the "Show preview" button. That will allow you to see what your edit would look like before you make it. That way, you can avoid having to make follow up edits. SMP0328. ( talk) 03:41, 6 July 2008 (UTC)
I'm a little bit concerned about moving the Kennedy v. Louisiana sentence. All of the cases in that section are discussed in chronological order. If the Kennedy case is moved out of order, then that opens the door for rearranging the order in which all the other cases are discussed too. Any problem if I move the Kennedy case back into chronological order? Ferrylodge ( talk) 15:49, 7 July 2008 (UTC)
Regarding the heading about history before enactment of the Eighth Amendment, the heading now simply says "Background." I'd really prefer "Historical background" or "History before enactment" or "Legislative history" or something like that, because just saying "background" seems like an invitation for people to start putting all kinds of other background information into that section, such as background about the U.S. crime rate, background about similar provisions in state constitutions, background about how other countries regulate punishments, et cetera, et cetera. Ferrylodge ( talk) 18:31, 28 August 2008 (UTC)
I'm not sure it was a good idea to merge two sections of this article. The sections were: "Punishments completely forbidden" and "Punishments forbidden as excessive". This seems like a good way to divide up the article, so I'm inclined to restore it. Here's why....
On the one hand, the Supreme Court has said that some punishments are never okay, regardless of the crime. For example, drawing and quartering is not even allowed as a punishment for aggravated murder.
On the other hand, the Supreme Court has said that some punishments are okay for some crimes, but not for tother crimes. For example, the death penalty is okay for murder, but not for shoplifting.
So, this seems like a useful distinction. Ferrylodge ( talk) 00:35, 14 October 2008 (UTC)
The words "England" and "English" were correct, but not extensive enough because Wales and other places such as the Isle of Man, the Channel Islands, British North America, and the Crown Colonies were also included. I have changed these reference to " United Kingdom" and "British" as good approximations even though I know that the United Kingdom was not established until 1706, and the British Bill of Rights was established earlier than that. The situation in Ireland is also an interesting and complicated issue.
However, the Parliament and the King in London governed not only England, but also Wales, British North America, and so on and for forth. Stating "England" and not even mentioning Wales, etc., implied that Wales was excluded. Furthermore, the British Bill of Rights, the Magna Carta, etc., presumably applied to Scotland after the United Kingdom was established in 1706. —Preceding unsigned comment added by 98.81.26.123 ( talk) 02:07, 31 December 2010 (UTC)
Why is there a header in the article claiming there is discussion regarding merging this article? SMP0328. ( talk) 23:09, 26 January 2011 (UTC)
The introduction paragraph has a sentence that reads,
I'm not sure how JFK would be involved in making (which I take to mean "drafting") the amendment when he was born in 1917 and the amendment was drafted in 1791. Some clarification or correction would be beneficial here. Markuskimius ( talk) 23:13, 28 September 2011 (UTC)
This entry could use a section on the denial of medical care to inmates. See Michelle Kosilek for an instance of sex reassignment surgery. Other cases involve organ transplants. Bmclaughlin9 ( talk) 18:59, 10 November 2012 (UTC)
Please do not remove material from this article without either a satisfactory explanation in the edit summary or a discussion on this talk page. Unexplained removal of sourced material is generally considered to be disruptive editing. Robert McClenon ( talk) 01:00, 23 September 2013 (UTC)
SMP0328 brought it to my attention that this case isn't an eighth amendment case. While this is mostly true, I think the relation it has to the concept of excessive fines certainly at least deserves a note - tho perhaps substantially less than what I added in my edit. Fresheneesz ( talk) 01:14, 23 October 2014 (UTC)
This may need to be better explained.
Does the prohbition of "cruel and unusual punishments" mean that both "Cruel" and "unusual" punishments are prohibited or must the punishment have to be "cruel AND unusual" to be covered by the prhbition.
So if the latter, a punishment that is very cruel but not unusual would not be prohbited, but the former it would be. Similarly if the latter a punishment that is not at all "cruel" but is unusual would be banned. E.g. if a US state wished to innovate and introduce New Zealand style restorative justice arrangements. — Preceding unsigned comment added by 82.153.111.160 ( talk) 22:05, 25 March 2015 (UTC)
http://time.com/3997439/department-justice-sleeping-public/
Notable yet, or wait for the courts? Hcobb ( talk) 00:52, 14 August 2015 (UTC)
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![]() | This is an archive of past discussions. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page. |
Archive 1 |
There is a segment here that reads:
This is a hard one to edit, but also hard to remove. My best attempt at an idea was to change "Because it is" to "If it were legally shown to be" or something indicating the need for a Judicial test-case relevant here..., but that sounded as if it would lack neutrality, somehow suggesting that the Eighth is ineffectual prohibit torture, or suggesting some non-neutral view of the Eight as facilitating torture somehow.
Although it does not literally prohibit torture outright, one might assume that the spirit of the amendment targets torture-like behaviour. However, like most constitutional law, it is open to interpretation and/or change in interpretation, something that many supreme courts, including the US supreme court, can do.
This is highlighted with Antonin Scalia's recent TV interview, where he illustrates that the general or majority view (elementary school teaching, for instance) that the spirit enshrined in the Eighth prohibits torture is, unfortunately, irrelevant to the Judicial interpretation of the Eighth. His point appears to be that "punishment" may not necessarily be torture, not because of any pain/psychological harm/etc.etc. involved in torture, but because punishment as it is often understood, suggests a Lawful Judgment that calls for a Punishment, i.e. the law cannot punish you in a cruel or unusual way. Although punishment has been understood by previous US supreme courts in previous cases to be far wider an encompassing term than Scalia's particular opinion, his views do suggest that a Bill specifying the fact outright may be appropriate, as a conservative supreme Judiciary would be unlikely to choose (it is their choice to hear cases, after all) to touch this issue with a 10' or more pole, so to speak.
Given the temporal flexibility of definition and interpretation of this amendment, and given that (to the best of my knowledge, feel free to enlighten me) the interpretation of this amendment in circumstances particular to torture by/through US citizens and/or agents of state has yet to be clearly defined, .....
....how are we to rewrite the original sentence without suggesting one way or the other as to it's applicability in cases of torture? We can't really say that it _does_ prohibit torture, but neither can we really say that it _does not_ prohibit torture. And when (as I have tried) we attempt to write it as an "IF", it unnecessarily becomes a "suspicious" sentence, indicating some subversive intent of the editor, one way or the other...
Can someone clear this up? It doesn't require constitutional interpretation, just a good linguistic understanding of how to properly reform this sentence to make it more ambiguous.
In this case, the ambiguous needs to be... well... ambiguous, really... In any case, the current sentence really needs work.
'nuff said. I write too much. Wernhervonbraun ( talk) 14:50, 4 May 2008 (UTC)
I noticed that this page says capital punishment was "effectively suspended" between 1967 and 1976. From what I gather it was actually from 1973 (or 1972, after Furman v. Georgia) but I'm not an expert on this. Is a change warranted? (I did a change but reverted since I wasn't sure.)
Why no history on the amendment itself? Who wrote it? What previous law(s) was it based on? What were the arguments surrounding its passage? More info would be nice. Tubbyty 19:48, 1 March 2006 (UTC)
Has any case ever dealt with the "excessive fines" clause? -- 85.179.164.64 ( talk) 00:09, 8 January 2008 (UTC)
Why is this original research?
In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, took the following position: "what was 'cruel and unusual' under the Eighth Amendment was to be determined without reference to the particular offense." Scalia and Rehnquist pointed to the text of the Eighth Amendment, which prohibits "excessive fines" — that provision regarding excessive fines would have been superfluous, according to Scalia and Rehnquist, if the "Cruel and Unusual Punishments" clause also prohibited excessive punishments.
Shouldn't it be mentioned somewhere in the article why some judges disagree that the Eighth Amendment includes a proportionality requirement? Ferrylodge ( talk) 02:11, 4 July 2008 (UTC)
Before making edits, click the "Show preview" button. That will allow you to see what your edit would look like before you make it. That way, you can avoid having to make follow up edits. SMP0328. ( talk) 03:41, 6 July 2008 (UTC)
I'm a little bit concerned about moving the Kennedy v. Louisiana sentence. All of the cases in that section are discussed in chronological order. If the Kennedy case is moved out of order, then that opens the door for rearranging the order in which all the other cases are discussed too. Any problem if I move the Kennedy case back into chronological order? Ferrylodge ( talk) 15:49, 7 July 2008 (UTC)
Regarding the heading about history before enactment of the Eighth Amendment, the heading now simply says "Background." I'd really prefer "Historical background" or "History before enactment" or "Legislative history" or something like that, because just saying "background" seems like an invitation for people to start putting all kinds of other background information into that section, such as background about the U.S. crime rate, background about similar provisions in state constitutions, background about how other countries regulate punishments, et cetera, et cetera. Ferrylodge ( talk) 18:31, 28 August 2008 (UTC)
I'm not sure it was a good idea to merge two sections of this article. The sections were: "Punishments completely forbidden" and "Punishments forbidden as excessive". This seems like a good way to divide up the article, so I'm inclined to restore it. Here's why....
On the one hand, the Supreme Court has said that some punishments are never okay, regardless of the crime. For example, drawing and quartering is not even allowed as a punishment for aggravated murder.
On the other hand, the Supreme Court has said that some punishments are okay for some crimes, but not for tother crimes. For example, the death penalty is okay for murder, but not for shoplifting.
So, this seems like a useful distinction. Ferrylodge ( talk) 00:35, 14 October 2008 (UTC)
The words "England" and "English" were correct, but not extensive enough because Wales and other places such as the Isle of Man, the Channel Islands, British North America, and the Crown Colonies were also included. I have changed these reference to " United Kingdom" and "British" as good approximations even though I know that the United Kingdom was not established until 1706, and the British Bill of Rights was established earlier than that. The situation in Ireland is also an interesting and complicated issue.
However, the Parliament and the King in London governed not only England, but also Wales, British North America, and so on and for forth. Stating "England" and not even mentioning Wales, etc., implied that Wales was excluded. Furthermore, the British Bill of Rights, the Magna Carta, etc., presumably applied to Scotland after the United Kingdom was established in 1706. —Preceding unsigned comment added by 98.81.26.123 ( talk) 02:07, 31 December 2010 (UTC)
Why is there a header in the article claiming there is discussion regarding merging this article? SMP0328. ( talk) 23:09, 26 January 2011 (UTC)
The introduction paragraph has a sentence that reads,
I'm not sure how JFK would be involved in making (which I take to mean "drafting") the amendment when he was born in 1917 and the amendment was drafted in 1791. Some clarification or correction would be beneficial here. Markuskimius ( talk) 23:13, 28 September 2011 (UTC)
This entry could use a section on the denial of medical care to inmates. See Michelle Kosilek for an instance of sex reassignment surgery. Other cases involve organ transplants. Bmclaughlin9 ( talk) 18:59, 10 November 2012 (UTC)
Please do not remove material from this article without either a satisfactory explanation in the edit summary or a discussion on this talk page. Unexplained removal of sourced material is generally considered to be disruptive editing. Robert McClenon ( talk) 01:00, 23 September 2013 (UTC)
SMP0328 brought it to my attention that this case isn't an eighth amendment case. While this is mostly true, I think the relation it has to the concept of excessive fines certainly at least deserves a note - tho perhaps substantially less than what I added in my edit. Fresheneesz ( talk) 01:14, 23 October 2014 (UTC)
This may need to be better explained.
Does the prohbition of "cruel and unusual punishments" mean that both "Cruel" and "unusual" punishments are prohibited or must the punishment have to be "cruel AND unusual" to be covered by the prhbition.
So if the latter, a punishment that is very cruel but not unusual would not be prohbited, but the former it would be. Similarly if the latter a punishment that is not at all "cruel" but is unusual would be banned. E.g. if a US state wished to innovate and introduce New Zealand style restorative justice arrangements. — Preceding unsigned comment added by 82.153.111.160 ( talk) 22:05, 25 March 2015 (UTC)
http://time.com/3997439/department-justice-sleeping-public/
Notable yet, or wait for the courts? Hcobb ( talk) 00:52, 14 August 2015 (UTC)
Hello fellow Wikipedians,
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Cheers.— InternetArchiveBot ( Report bug) 19:51, 26 July 2017 (UTC)