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Wednesday, April 30, 2008

Scalia Said Torture Cruel and Unusual in 1992 Supreme Court Opinion

Here's the portion of Scalia's 60 Minutes interview in which he says torture does NOT violate the 8th Amendment ban on cruel and unusual punishment:



Scalia: "Whose in favor of [torture]? Nobody ... Everything that is hateful and odious is not covered by some provision of the constitution ... Has anybody ever referred to torture as punishment? ... Anyway, that's my view and it happens to be correct."

He says, "Has anybody referred to torture as punishment?" Well, let's see.
I would direct the Court's attention to Hudson v McMillian. In this Supreme Court decision, Scalia joined in a dissent with Clarence Thomas in which they said the 8th Amendment did not apply to treatment of prisoners but merely to their sentences UNLESS THERE WAS SOME SORT OF SADISTIC BEHAVIOR (ahem):

Nowhere does [a prior opinion] even hint that the Clause might regulate not just criminal sentences but the treatment of prisoners. Scholarly commentary also viewed the Clause as governing punishments that were part of the sentence...
Surely prison was not a more congenial place in the early years of the Republic than it is today; nor were our judges and commentators so naive as to be unaware of the often harsh conditions of prison life. Rather, they simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.


However, the dissent goes on to say:

From the outset, thus, we specified that the Eighth Amendment does not apply to every deprivation, or even every unnecessary deprivation, suffered by a prisoner, but only that narrow class of deprivations involving “serious” injury inflicted by prison officials acting with a culpable state of mind.

When an official uses force to quell a riot, we said, he does not violate the Eighth Amendment unless he acts “ ‘maliciously and sadistically for the very purpose of causing harm.’ ”


Is that not the definition of torture? "Acting maliciously and sadistically for the very purpose of causing harm?"

Of course it is. That's why the very reasoned opinion by Thomas (in which Scalia joined) makes the following statement:

That is not to say that the injury must be, or always will be, physical. “Many things-beating with a rubber truncheon, water torture, electric shock, incessant noise, reruns of ‘Space 1999’-may cause agony as they occur yet leave no enduring injury. The state is not free to inflict such pains without cause just so long as it is careful to leave no marks.” Williams v. Boles, 841 F.2d 181, 183 (CA7 1988). Surely a prisoner who alleges that prison officials tortured him with a device like the notorious “Tucker Telephone” described by Justice BLACKMUN, ante, at 1003, has alleged a serious injury.

So perhaps Mr. Scalia would like to clarify why he believes that torture does not violate the 8th Amendment when his own holdings would have us believe otherwise.

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