Cruel and Unusual Punishment

Cruel and unusual punishment — the 8th Amendment to the Constitution (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”) prohibits it. The issue is just what is or is not cruel and unusual. The Supreme Court decided long ago that nobody can be punished for who or what they are. One may be punished only for what one does. It’s called the “status-act” distinction. Robinson v. California, 370 U.S. 660 (1962). See also, Powell v. Texas, 392 U.S. 514 (1968).

In Powell the defendant challenged a Texas law that prohibited public drunkenness on the ground that his status as an alcoholic compelled him to violate the statute. He claimed he was being punished not for anything he had done, but simply for being an alcoholic.

Justice Marshall, writing for the plurality, didn’t buy it. Addiction does not render an act non-volitional. You can be addicted to alcohol but you can still be punished for public drunkenness. Addiction does not negate volition.

Justice Marshall was exactly correct, and even had an addiction of his own that he battled. He essentially chain smoked himself to death. He always said he knew he should stop smoking but he never did. No better man to reason that giving in to an addiction is still a choice one makes. It’s an act, not status. Therefore, constitution does not prohibit punishment.

The 4th Circuit Court of Appeals, in an 8-7 en banc decision, has recently gone rogue on the Supreme Court and struck down a public drunkenness law in Virginia. The court made a weird comparison of the natural need for food and water to survive with the addiction to alcohol. No one can be punished for eating food and drinking water because that’s necessary for one’s survival. In plain contravention of the Robinson the majority found that addiction provided immunity to the Virginia statute.

This was clearly a political decision. The majority were all appointed by liberal presidents and all but one of the dissenters by conservative presidents. No one can ever say the courts have not be politicized.

This will probably go up to the Supreme Court unless Virginia decides to just ask Justice Roberts how he will decided the case. Might as well take this short cut and avoid a lot of wasted time and effort.


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