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Posts published in “Day: September 7, 2018”

Cruel and unusual


When we think about the eighth amendment to the Constitution, the one banning “cruel and unusual punishment,” torture and the like spring to mind. No drawing and quartering, presumably; no waterboarding, one might think.

But last week’s 9th Circuit Court of Appeals decision in a case blasting the city of Boise for running afoul of the amendment may give us some new ways of thinking about that constitutional prohibition.

The case is is Robert Martin v. City of Boise, decided on September 4, and partly upholding, partly rejecting a district court decision (which appeared to side to a greater degree with the city). In the ruling, the judges said “We consider whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.”

And there are significant numbers of homeless people in Boise. Most do spend their nights in shelters, but not all do; the estimate in 2016 was that 125 were sleeping on sidewalks or in parks or similar places. That number of unsheltered almost certainly was low. Shelters do turn away people because they run out of room.

This is not the first time a similar idea has come to the court. In a 2007 ruling, in June v. City of Los Angeles, the 9th Circuit held that “‘so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters]’ for the homeless, Los Angeles could not enforce a similar ordinance against homeless individuals ‘for involuntarily sitting, lying, and sleeping in
public’.” (The Jones ruling wasn’t binding, but it does show ongoing reasoning by the judges.)

Well, after all: Where would you expect the homeless to go? What would you expect them to do - simply not sleep?

And isn’t sleep deprivation - apparently required under the law - a form of cruel and unusual punishment?

The question of what is and isn’t cruel and unusual takes up about seven pages of the ninth circuit decision, and it’s worth reading by any citizen. It specifically stops short of requiring the city provide shelters for homeless people. But “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

When does the punishment become cruel and unusual? Maybe around the point where people lose their ability to make a realistic decision to the contrary - when they lose control over their lives, as people in really impoverished circumstances may do.
That raises some questions about how we should deal with the impoverishment, homeless or not, of so many people in our midst.

Which raises another question. The eighth amendment in total says, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” When are bails and fines excessive? They’ve been increasing steadily, sometimes at galloping pace, in recent years. When is it too much?

Some states, California for one, have begun revisiting such questions. In Idaho it’ll be a matter for another, but surely arriving, day.