The Blurring of Torture

The Boston Review's October/November 2004 issue has a fascinating exegesis of the constitutional prohibition on cruel and unusual punishment, written by Joan Dayan, then a professor at Vanderbilt University. Dayan's thesis is that the Bush administration's redefinition of torture after 9/11 needs to be viewed in the context of the Eighth Amendment's legal history -- and specifically in the context of how U.S. courts have parsed the meaning of "cruel and unusual punishment" in the domestic criminal justice system.

It might seem at first that the rules for the treatment of Iraqi prisoners were founded on standards of political legitimacy suited to war or emergencies; based on what Carl Schmitt called the urgency of the "exception," they were meant to remain secret as necessary "war measures" and to be exempt from traditional legal ideals and the courts associated with them. But the ominous discretionary powers used to justify this conduct are entirely familiar to those who follow the everyday treatment of prisoners in the United States -- not only their treatment by prison guards but their treatment by the courts in sentencing, corrections, and prisoners' rights. The torture memoranda, as unprecedented as they appear in presenting "legal doctrines...that could render specific conduct, otherwise criminal, not unlawful," refer to U.S. prison cases in the last 30 years that have turned on the legal meaning of the Eighth Amendment's language prohibiting "cruel and unusual punishment."

Dayan argues that a loophole in the 13th Amendment allowed the courts to use criminal law to effectively re-enslave many freed blacks; and the legal reasoning behind these early court rulings grew into a body of precedents that, although conflicting, had the overall effect of creating a very narrow definition of what constituted "cruel and unusual punishment."

The ghost of slavery is built into our legal language and holds our prison system in its grip. To the extent that slaves were allowed personalities before the law, they were regarded chiefly -- almost solely -- as potential criminals. During the second session of the 39th Congress (December 12, 1866 - January 8, 1867) debates raged on the meaning of the exemption in the 13th Amendment to the Constitution. It abolished slavery "except as punishment of crime whereof the party shall have been duly convicted." The parenthetical expression guaranteed enclosure, a bracketing of servitude that revived slavery under cover of removing it. Those who were once slaves were now criminals, and forced labor in the form of the convict lease system ensured continued degradation. As Charles Sumner warned, the locale for enslavement would move from the auction block to the courts of the United States.

This is a very long article, but well worth reading.