Posts Tagged The Warren Court

Resolving Standards of Decency


Words are powerful and elusive things.  We are given words as a method of conveying experience to other humans.  They are not perfect tools.  They give some insight to the human experience, but they often fail to capture the vivid, richness of emotion and feeling that encapsulates one’s humanity.  TS Eliot perfectly captures this idea in Sweeney Agonistes when his protagonist exclaims in frustration “I’ve got to use words when I talk to you!”  We tend to believe that we have shared definitions of words so that when we make a statement the listener can have some idea as to what we are experiencing.  However, there are words in our language that I believe have such a different definition from person to person that it is nearly impossible to discern what on earth they mean.

One word that would fall into this category would be the word cruelty.  I can honestly say that after years of trying to understand it, I still have no clue what this word means.  This is troubling because the word cruelty has a remarkable power in our culture.  It is a word that can define whether another human or animal is worthy of the ability to continue to live.  The word can save one creature from inhuman punishment while sentencing another to horrific torment.  But what does it really mean?

When trying to understand the moral dimensions of a word the law can be a good guide.  The Eighth Amendment to the Constitution includes this word when it says that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The Supreme Court has interpreted the part about “cruel and unusual punishment” in countless ways.  For our purposes, we are not going to discuss the “unusual” part of the phrase because that simply means it is uncommon or rare.  If any cruel punishment happens often, it is no longer unusual.  If every murderer were punished by being covered in honey and attacked by bees it could still be outlawed by the court as being a cruel punishment even though it was happening all the time.  The key to understanding the Amendment is the word cruel.  The Court seems to be trying to distinguish cruelty from non-cruelty in its rulings in this matter.

The Court dispensed with several “cruel” punishments back in 1878 in Wilkerson vs. Utah when Justice Nathan Clifford wrote in his majority opinion that beheading, disemboweling, dissection, burning someone to death and other barbaric methods of torture were not acceptable.  It would be hard to find many people who would make the case that those things were not cruel.  However, Clifford’s holding was that being executed by firing squad for a crime was not cruel and unusual and, therefore, was Constitutionally permitted.  This holding is extremely confusing.  Being ripped apart by bullets is not cruel, but being beheaded is cruel.  It is quite possible to be shot and to not die immediately, but to linger in pain for hours before perishing.  What is the distinction?

In 1951, the Court has begun to move away from other types of punishments.  In the Trop vs. Dulles case, a non-death penalty case focusing on the government’s ability to take away a person’s citizenship for deserting while in the army, the ruled that taking someone’s citizenship away was, in fact, cruel and unusual punishment.  This is a monumentally significant ruling that called into question many punishments that were being used throughout the country.  Justice Earl Warren wrote in his majority opinion that the Eighth Amendment “must draw it’s meaning from the evolving standards of decency that mark the progress of a maturing society.”

This phrase is particularly important because Warren seems to be making the point that as our society evolves it is becoming less cruel and the Court should reflect that.  These words have pushed the law away from certain punishments that were once accepted.  Death by firing squad, once a relatively common punishment, has been eliminated.  The Court ruled in Coker v. Georgia (1977) that the death penalty was not acceptable for rape.  The Court has stated that executing someone with an extremely low IQ is not permissible (Atkins v. Virginia 2002).  The Court has also mandated that those under the age of 18 cannot be murdered for committing a capital crime (Roper v. Simmons, 2005).  All of these punishments are considered cruel.

The fascinating part about Trop v. Dulles is that while it holds that taking away someone’s citizenship is cruel and unusual, executing someone is not.  This is inconsistency is nothing short of bizarre.  Justice Felix Frankfurter pointed out the absurdity of this idea in his dissent when he asked whether the words of the Constitution were “so empty of reason that it can be seriously urged that the loss of citizenship is a fate worse than death?”

Unfortunately, this absurd inconsistency does not only reside in the halls of the Supreme Court.  It is everywhere you look.  In the early days of the War on Terror, we were regularly subjected to surreal debates over why beating someone was cruel while water boarding someone was not.  Is it cruel only if the punishment leaves lasting physical scars?  Do our standards of cruelty change based on where someone was born?

The American news media brought horrific pictures of the tortures taking place at the Abu Ghraib Prison but has paid scant attention to the thousands of Iraqis (civilian and military) who have been killed during the war.  Being threatened by dogs and placed in stress positions is cruel but being killed by an advancing army trying to take control of a city is not?

During the trial of Michael Vick, many stunned Americans stood aghast that a man would injure and punish animals in such a cruel way.

Yet our culture is so committed to the idea of murdering animals for food that we have holidays based around consumption of animals.  According to a USDA study from 2000, the average American consumes nearly 200 pounds of meat per year.  Killing animals for food is so widely excepted in our culture that one is not astonished to see pictures or statues of smiling, dancing pigs on the wall of a barbeque restaurant.  Americans often seem completely blind to the pain and suffering inflicted on animals, until a football player decides to torment dogs for fun. Is it cruelty because the intent was solely to harm animals?  Had he eaten his dogs after killing them would it have not been cruel?

Watching news reports about the horrendous cruelty of dog fighting followed by a Wendy’s commercial for a hamburger that features enough bacon on it to clog the arteries of the Mississippi River is enough to confuse anyone who is paying attention. How could one person’s massacre become another person’s feast?

I don’t propose to know how to make the world any less cruel.  Human behavior has always mystified me and I certainly have no clue how to change it.  However, the poorly defined nature of the word cruel allows people to stand on a moral high ground that is not deserved.  We are a society that has laws against forms of cruelty while tacitly accepting other forms as normal behavior.

How can we distinguish what is and isn’t cruelty?  I believe that the first step is coming up with a definition for the word that is clear so we can honestly distinguish it.  Granted, definitions are never perfect, but when one is defined in a way that is so completely unclear it can warp the sensibilities of a culture to the point of absurdity.

A simple but effective definition of cruelty would be any act that causes harm or suffering to any living creature.  This removes the artificial boundaries that have been created and allow us to call things what they are.  When the word is defined this way we are not able to make abstract distinctions between who is worthy of cruelty and how much pain they should be allowed to endure.  It simply is what it is and we must then cope with it for what it is.

This definition no longer allows us to display cruelty while hiding from behind a moral facade.  If we choose to claim we don’t know any better we are not exonerated because in the eyes of the person or animal that is suffering that distinction is meaningless.  Cruelty need not be a willful act, it must only be something that causes suffering or harms another.  I am not naive enough to believe a revised definition of a word can end human cruelty, but there should be a price for the pain that we inflict or allow on other living things and that cost should be the truth of what we have participated in.

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