City Newspaper Archives - 5/2008

JUSTICE: Crime, Scalia, and punishment

Published on May 14, 2008
During the recent 60 Minutes interview of Justice Antonin Scalia, I was reminded of the determination of the Lord High Executioner: "My mission so sublime, I shall reveal in time, to always let the punishment fit, the punishment fit the crime." Surely Scalia presents a farce in imitation of Gilbert and Sullivan.

If, for example, 100 lashes are awarded as the outcome of a trial and conviction, then let us assume, for the sake of discussion, that Scalia would find that to be "cruel and unusual punishment." (Maybe not; remember that his is a classical education). But if 100 lashes were applied in the coercion of a prisoner to reveal information, that is OK in Justice Scalia's version of the Constitution.

However, the infliction of pain, according to the dictionary, is punishment per se, as in "severe, rough, or disastrous treatment." Likely the framers of the Constitution did not imagine that their document would have to address brutality in the treatment of persons imprisoned but not indicted or convicted. So torture of detainees is cruel and unusual punishment and also punishment without trial. That is against Amendment 6 (the right to a public trial by a jury), Amendment 5 (the right to speedy due process), and Amendment 8 (against cruel and unusual punishment).

RON JOHNSON, PITTSFORD