John Bessler
Appearances
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We The People: Cruel and Unusual Punishment
There was some uncertainty about what it actually meant. It's kind of breadcrumbs in a way. When you look back at the history of this originally, there's a few comments that are made.
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We The People: Cruel and Unusual Punishment
Objected to the words, nor cruel and unusual punishments, saying the import of them being too indefinite. So he's encapsulating the idea that this is a very general prohibition. There was other people like James Iredell from North Carolina who said it would have been ridiculous, essentially, to categorize all the different punishments that were considered cruel and unusual at that time.
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We The People: Cruel and Unusual Punishment
Livermore suggested, well, it's going to be for the courts to actually give some essentially some teeth to this prohibition because we're not defining it explicitly.
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We The People: Cruel and Unusual Punishment
Now, in spite of his objection to the inclusion of this language, the first Congress adopted what became the language of the Eighth Amendment, the record reflects, by a considerable majority.
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We The People: Cruel and Unusual Punishment
The first case where the U.S. Supreme Court really weighs in is in a case called Weems v. United States in 1910. And in that case, it was actually considering a punishment, kind of a bizarre punishment that was inflicted in the Philippines. At that time, the U.S. had essentially control over the island.
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We The People: Cruel and Unusual Punishment
And a guy named Paul Weems was working there, and he was convicted of a crime.
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We The People: Cruel and Unusual Punishment
And was actually sentenced to something called cadena.
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We The People: Cruel and Unusual Punishment
The Supreme Court looked at that punishment and said, that punishment is unconstitutional.
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We The People: Cruel and Unusual Punishment
So there was a guy named Albert Trope who was a natural born citizen of the United States. He was serving in the army in 1944. He actually escaped from an army stockade in Morocco.
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We The People: Cruel and Unusual Punishment
And then sentenced to three years at hard labor.
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We The People: Cruel and Unusual Punishment
The Supreme Court said it violates the idea of a person's right to have rights. You couldn't deprive somebody of their citizenship because that's the basis of where they got their rights to begin with, including the right not to be subjected to cruel and unusual punishments.
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We The People: Cruel and Unusual Punishment
So it was one thing to punish somebody for desertion by imprisonment, but it's a different thing to strip them of their citizenship.
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We The People: Cruel and Unusual Punishment
If the enslaved were simply whipped or lashed with regularity, then it would not be an unusual punishment because it was a common punishment.
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We The People: Cruel and Unusual Punishment
So necessity was seen as the dividing line between liberty and tyranny. But if you apply that same punishment principle today, that any punishment that goes beyond necessity is tyrannical, there is no need for the death penalty because people are already incarcerated in very secure facilities.
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We The People: Cruel and Unusual Punishment
That core principle that was actually embraced in the founding era is that any punishment that goes beyond necessity, and some of the founders actually talked about goes beyond absolute necessity, was considered tyrannical. That's the principle that the U.S. Supreme Court unfortunately, has never really addressed fully in its jurisprudence in the Eighth Amendment.
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We The People: Cruel and Unusual Punishment
But it's a core value or belief that existed in the 18th century that has to be, I think, taken into consideration when one is reviewing a punishment like the death penalty.
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We The People: Cruel and Unusual Punishment
Beccaria was part of a group in Milan called the Academy of Fists.
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We The People: Cruel and Unusual Punishment
So he wrote an essay, for example, on smuggling, in which he used algebra to try to calculate the optimal punishment for smuggling. He studied the chances of statistical probabilities of winning a card game.
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We The People: Cruel and Unusual Punishment
That book was translated into English as an essay on crimes and punishments.
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We The People: Cruel and Unusual Punishment
The book was novel because it was the first book really to make a comprehensive case against the death penalty.
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We The People: Cruel and Unusual Punishment
And he initially published this book anonymously because his fear of being persecuted.
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We The People: Cruel and Unusual Punishment
This book became kind of the equivalent of a New York Times bestseller for its day.
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We The People: Cruel and Unusual Punishment
I'm a professor of law at the University of Baltimore School of Law, and I also teach as an adjunct professor at the Georgetown University Law Center.
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We The People: Cruel and Unusual Punishment
This book was read by George Washington. James Madison recommended the Library of Congress purchase the book, and Thomas Jefferson had multiple copies of the book in different languages. Benjamin Franklin, a number of founders were enthralled by Beccaria's ideas.
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We The People: Cruel and Unusual Punishment
So we have to look first at the state constitutions. And what we see is that George Mason, who was the drafter of the Virginia Declaration of Rights, he just cobbled together a bunch of the rights that were in the English Bill of Rights, including this prohibition against cruel, unusual punishments, and included it in the Virginia Declaration of Rights in 1776.
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We The People: Cruel and Unusual Punishment
And it was Madison, who was also from Virginia, who decided that that language should be included in the U.S. Bill of Rights in 1791. James Madison actually made a short revision to the language. In England, the prohibition said, ought not. So it was more hortatory in nature. And in the American version, it says, shall not inflict cruel and unusual punishments.