Monday, October 08, 2012

Cruel XOR unusual Punishment

(This post was done with the help of Lane Hemaspaandra and John Purtilo.)

The 8th amendment of the US Constitution states

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
There is an ambiguity here. Let C be cruel and U be unusual. They are saying NOT(C AND U) = NOT(C) OR NOT(U). Common sense would dictate that they meant NOT(C) AND NOT(U).

  1. (This article was emailed to me by Lane H. along with the idea for this post.) This article (see also this Wikipedia article) is an example where the CRUEL but NOT UNUSUAL argument seems to have been explicit. The case was about a MANDATORY life sentence in prison for possessing over 650 grams of cocaine, in Michigan. Is that a lot? (I never could figure out that Metric System.) In terms of numbers or getting high I really don't know if 650 grams is a lot, but legally its NOT A LOT--- the only other state that comes close to this kind of penalty is Alabama with a life-sentence for 6500 grams---that is not a typo. (See the Wikipedia articles section on White's criticism of Kennedy's argument.) I quote the syllabus of the decision which is not written by the members of the Supreme Court and is not part of the decision, but is rather prepared by the Office of the Clerk (of the Supreme Court)---who, one assumes, is pretty darned good at extracting the key points of the ruling, and so the syllabi are very useful.
    Severe, mandatory penalties may be cruel, but they are not unusual in the
    constitutional sense, having been employed in various forms throughout
    the Nation's history.
    Some past rulings HAVE indicated that a sentences that is out-of-proportion with the crime MAY be considered Cruel and Unusual. But, alas, unlike mathematics, definitions can change over time. (Well- in math that happens sometimes, but not often and usually not with dire consequences.)
  2. One could argue that Capital Punishment is C but NOT(U). And indeed, the courts have often upheld it. Did they they use the argument that Capital punishment is C but NOT(U), hence it does not violate the 8th amendment? This article (emailed to be my Lane) makes that line of reasoning explicit and is against it.
  3. If someone commits anti-Semitic vandalism and the courts decide that he or she is forced to read Anne Frank's Diary, that would be U but NOT(C). Not sure how they would enforce this- give a quiz? Are Cliff notes okay? What if the vandal saw the movie instead? Would this really work? (I honestly don't know.) Is this Hypothetical? In America YES. John found a case in Italy and I found a case in Germany). If this gets to be a common punishment for anti-Semitic crimes then it may no longer be unusual. I could find no other real cases where people convicted of crimes had, as part of their sentence, that they had to read something (though IANAL so there could be some I don't know about).
  4. If an Occupy Wall Street guy vandalizes a Financial Institution's offices and is forced to read Atlas Shrugged that would be unusual. But is it cruel? (My opinion: YES) How about the Cliff notes? (My opinion: NO) Is this hypothetical? (My opinion: YES.)
  5. What if a teenage girl was in Juvenile court for cutting off the hair of a 3-year old (against the 3-year old's will) and the Judge agreed to reduce the sentence if the teen's mother cut off the teen's pony tail in court. This would be considered unusual. But is it cruel? Is it hypothetical? No
It is most likely that the phrase Cruel and Unusual was not meant to be
broken down into its component parts.

So what Logic did the founders use?
Thomas Jefferson knew more math than any of the founding fathers. But alas,
he was off in France when the constitution was written.


  1. A computer scientist walks into a drug lab and orders 650 grams of cocaine. The teller's eyes widen a little at the size of the order, but he quickly fills the request. The next month, the computer scientist returns and orders 6,500 grams of cocaine. The teller looks at her in shock and says, "That is an impressive purchase. Even relative to your earlier orders, that is an ORDER OF MAGNITUDE"

  2. a pound and a half of cocaine isn't a lot legally?

  3. 1) As I said IANAL

    2) As I said- Metric confuses me

    3) More seriously, no other state had life-in-prison for 650 grams.
    Thats what I meant by `not a lot legally'- though I admit that if
    some other state has 20-30 years for it, yup, thats a lot legally.
    (I do not know what other states do.)

  4. It's hard to think of a single mathematical definition of a reasonable age that hasn't changed over time. Euclid defined a point as 'that which has no part', a line as 'breadthless length', and a number as a 'multitude composed of units'. None of these, evocative though they are, still serves its purpose, and indeed, the concept of number itself has widened so far that I'm not sure it can admit a single all-encompassing definition of any use.

    And while the consequences of changes in definition are rarely dire, they are often profound - again, just think of the history of what 'number' has meant to mathematicians.

  5. What Logic did the founders use? I don't know, but Gödel found a loophole in the Constitution. From this 2005 article on The New Yorker:

    "So naïve and otherworldly was the great logician that Einstein felt obliged to help look after the practical aspects of his life. One much retailed story concerns Gödel’s decision after the war to become an American citizen. The character witnesses at his hearing were to be Einstein and Oskar Morgenstern, one of the founders of game theory. Gödel took the matter of citizenship with great solemnity, preparing for the exam by making a close study of the United States Constitution. On the eve of the hearing, he called Morgenstern in an agitated state, saying he had found an “inconsistency” in the Constitution, one that could allow a dictatorship to arise. Morgenstern was amused, but he realized that Gödel was serious and urged him not to mention it to the judge, fearing that it would jeopardize Gödel’s citizenship bid."

  6. Happened across your blog while searching for complexity theory stuff and even though this is months old I feel obligated to comment here.

    I think it quite clear that when the Founders said "and" here they really meant it. You claim that common sense dictates otherwise, but people keep forgetting that the Bill of Rights is motivated by actual or feared abuses of power by British colonial authorities, still fresh in people's minds in 1789, and not by modern liberal sensitivities. This particular section is borrowed from the English Bill of Rights, which was instituted in reaction to James II's abuses. They weren't concerned about ensuring that universal sentencing guidelines were sufficiently humane, they were concerned about arbitrary abuse of judicial and executive powers- finding relatively trivial offenses you can convict your enemies for and then handing out excessive sentences.

    If a judge decides to sentence a jaywalker to sing "I'm a little teapot" his unusual but non-cruel punishment raises no 8th Amendment issues. If a state votes to summarily execute all jaywalkers, the 8th Amendment wasn't meant to stop them; the resulting punishment, being applied to all offenders, is not "unusual" in the relevant sense. But a judge is not free to say "I know we normally let jaywalkers off with a $5 fine, but I really dislike this guy and by jaywalking he put himself in my power, so I'm going to have him drawn and quartered."

    The Founders did not mean to put any limits on governments' (especially state and local governments') abilities to be as draconian about sentencing guidelines as they please. As far as I can tell, the first person to even suggest that sentences applied to all offenders could be "cruel and unusual" was Ohio congressman John Bingham in 1866, grasping for ways to override the unjust laws the South was passing after the Civil War.

    I'm not claiming that draconian punishments are OK, just that lying to ourselves about the content of the Constitution is not the way to resolve such disagreements. If we think a federal punishment or a punishment in our own state, county, etc is too cruel, we need to resolve that through the democratic process. If for some reason we think that's insufficient and feel we need to override the political process to keep some jurisdictions from coming up with punishments that offend our sensibilities, we need to pass another Amendment that clearly codifies this; the Constitution was made to be amended. If we can't produce the kind of consensus that an amendment requires, it's a dishonest abuse of power to read our preferences into the Constitution as the Warren court did in Furman v. Georgia and as the Supreme Court has continued to do as evidenced by Kennedy v. Louisiana.