1. Principles of Order: What the Constitution Says About Prisons

black Image of scales on white background with the words, "calibrate the scales" overlaid. As with any set of scales, the scales of justice must, from time to time, be recalibrated. Total balance is never achieved, but all in the criminal justice and legal systems must strive for it as much as possible.

By C J Oakes

“There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

Ayn Rand

The United States’ Constitution was drafted for the purpose stated in its Preamble.

In the Preamble to the U.S. Constitution, we are there told that the goal of the Constitution is

“to…secure the Blessings of Liberty to ourselves and our Posterity.”

English: First page of Constitution of the Uni...
English: First page of Constitution of the United States Česky: První strana originálu Ústavy Spojených států amerických Español: La página primera de la Constitución de los Estados Unidos de América (Photo credit: Wikipedia)

Liberty is the highest possible goal any peoples can reach because it provides the foundation for any other goal one may desire. Liberty provides the means by which anyone can determine for oneself how to be happy. However, liberty is not without limits, which is why the principle of justice, also stated in the Preamble, is vital to this goal.

Yet, as noted author Ayn Rand masterfully pointed out, a government only has power over criminals. Thus, it is in the interests of any ruler or ruling body to expand the laws under which its citizens may be rendered “criminal.” This gives that ruling body power over individuals. However, the American tradition, as exemplified in the Constitution and laid out by principle in the Preamble, is antithetical to such power. The Founding Fathers sought to create a limited government, one which would provide for the widest possible range of liberty.

Still, the Founding Fathers recognized that in order for liberty to rule the land for the many, some would by necessity have to surrender their liberty when trampling on the rights of others to that blessing. Thus, whereas there is no direct mention of imprisonment in the Constitution, in clear language, it does permit the taking of life and/or liberty from those breaking laws as determined by Congress and the States. It stands to reason, that to remove liberty from a law-breaker, some form of imprisonment must be used.

Following are the only instances wherein the United States Constitution describes such penalties to some degree or hints at the legal foundation for these…

Article I, Section 2

3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Before being altered by the 13th and 14th Amendments, Article I, Section 2, paragraph 3 shows that at the time of the writing and ratification of the Constitution, there were both free and unfree persons living in the nation. Some of those without freedom were indentured servants whereas the others, the “three fifths of all other persons,” were slaves. Some today have referred to the Correctional system as modern slavery and while this seems an insensitive statement to make, the language of the 13th Amendment indicate that this is both an acceptable and proper term.

The 13th Amendment to the Constitution reads,

“Section 1.

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

As stated, slavery, “except as a punishment for crime,” was banned with the 13th Amendment to the Constitution. In other words, slavery, under the United States Constitution, IS an acceptable form of punishment for crime. Thus, to refer to the modern penal system in such terms is accurate.

Article I, Section 3

7:  Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:  but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This part of the Constitution clearly permits for “punishment, according to law.” There is no stipulation here about what that punishment may be, nor regarding what shall not be permitted. That appears later in the Bill of Rights.

Article I, Section 8

3:  To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

6:  To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

10:  To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

18:  To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Further language in the Constitution regarding crime and punishment include “regulate,” provide for the punishment of,” “define and punish,” and “to make all laws…necessary…for carrying into Execution the…Powers vested by this Constitution.” Again, though prisons are not mentioned, it is clear from the language “necessary” that these are acceptable tools to combat crime and maintain the Tranquility and Welfare of the people.

Article I, Section 9

3:  No Bill of Attainder or ex post facto Law shall be passed.

Bills of Attainders

English: Second page of Constitution of the Un...
English: Second page of Constitution of the United States Česky: Druhá strana originálu Ústavy Spojených států amerických Español: La página segunda de la Constitución de los Estados Unidos de América (Photo credit: Wikipedia)

and ex post facto Laws are commonly used by despots. These are the tools by which individuals and entire groups are singled out AFTER THE FACT for punishment. In other words, laws are passed to punish acts which were not illegal at the time of commission, generally for the sole purpose of attacking the life/liberty of a particular individual or group.

This part of the Constitution demonstrates that the writers were very concerned with liberty and justice. Thus, it serves to remind us that as stated in the Preamble and as demonstrated throughout, limited government would best serve the ends of domestic tranquility and general welfare. By placing an absolute limit on governing authorities in clear, unambiguous language, the Founding Fathers were showing their concern that any future government may overstep its limits.

Article III, Section 2

3:  The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Time and again, in writings outside the Constitution, the framers of that document expressed that the jury was the final barrier between liberty and a tyrannical government. Thus, where the possibility of imprisonment is concerned, juries are vital elements for balancing justice while protecting liberty. For instance,

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson

“Therefore, the jury have the power of deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience? … [I]s a juror to give his verdict generally, according to [the judge’s] direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer, no. It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” – John Adams

“Trial by jury in civil causes,… trial by jury in criminal causes, [and] the benefits of the writ of habeas corpus… all stand on the same footing; they are the common rights of Americans.” – Richard Henry Lee

“In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” – James Madison

Yet, what of the Amendments to the Constitution? What say these on the matter of incarceration?

Bill of Rights

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

English: Third page of Constitution of the Uni...
English: Third page of Constitution of the United States Česky: Třetí strana originálu Ústavy Spojených států amerických Español: La tercera página de la Constitución de los Estados Unidos de América (Photo credit: Wikipedia)

The 4th Amendment spells out that warrantless searches violate the principles of liberty outlined from the beginning of the Constitution.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 5th Amendment, with the words, “nor be deprived of life, liberty, or property,” demonstrates that incarceration is a viable means of punishment, provided due process is respected.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The 6th Amendment speaks of “criminal prosecutions,” thus again demonstrating that although limited government would be the goal, there would by necessity be times when crimes would occur and would need to be properly punished.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Finally, we come to the 8th Amendment to the Constitution. This one gets to the crux of this entire book for it discusses “cruel and unusual punishments.” This Amendment tells us that punishments which are “cruel and unusual” are not permitted. But what exactly IS “cruel and unusual?”

One of the best comments made on this subject comes from noted author, Tom Clancy. He said,

“Back [in pre-Revolutionary America] “cruel and unusual punishment” meant the rack and burning at the stake . . . in more recent rulings [it has] been taken to mean the absence of cable television and denial of sex-change operations, or just overcrowding in the prisons.”

This well sums the matter of “cruel and unusual punishment.”

English: Fourth page of Constitution of the Un...
English: Fourth page of Constitution of the United States Česky: Čtvrtá strana originálu Ústavy Spojených států amerických Español: La cuarta página de la Constitución de los Estados Unidos de América (Photo credit: Wikipedia)

What is considered cruel and what is considered unusual changes with time. During the Wild West period of American history, hanging was considered normal; today it is unusual, though not necessary considered cruel.

At various times throughout history, the United States Supreme Court has had to revisit the issue of “cruel and unusual,” generally regarding cases involving Capital Punishment. In fact, in 2015, the court again had to rule on such cases because of shortages of the drugs used to cause a generally peaceful death. Manufacturers of these drugs worldwide are protesting their use by prisons for lethal injections and are starting to shut off supplies.

In the state of Oklahoma, officials decided to use an alternate drug to induce sleep. The drug, midazolam, is effective in putting many, but not all to sleep and after one botched execution in which the inmate suffered immense pain before death, the matter was brought to the Supreme Court. On June 29, 2015, the Court determined that use of midazolam was not “cruel and unusual,” clearing the way for other states to obtain the drug (Barnes, 2015).

Of course, lethal injections are both new and not-so-new.

During the 19th century, the state of New York considered the use of lethal injections for executions. However, because the hypodermic needle was still new, concerns that the public would draw negative associations and reject the medical tool prevented its use. Later, when Nazi Germany used chemical injections and gas chambers to kill prisoners, wholesale rejection of this method was the result. It was not until 1977 when Oklahoma M.E. Jay Chapman developed the three-step injection system that the idea was revisited (Pickert, 2009).

At the time, the electric chair was the choice of many states in carrying out executions and with numerous botched, the Supreme Court was hearing cases on it. Thus, the climate was ripe for a new, more humane way to kill those convicted of capital crimes. Lethal injection filled the bill nicely. However, hanging, the gas chamber, and firing squad are still considered viable, non-cruel methods of execution.

Other cases involving cruel and unusual punishment have focused more on conditions in prisons.

For instance,

  • Hudson v McMillian (1992) considered the matter of inmate beatings by guards. The Court ruled that such beatings violated this 8th Amendment prohibition.
  • Ruiz v Estelle (1980) became a landmark case. In that challenge before the Supreme Court was the question of whether crowded prison conditions and the lack of healthcare could be considered “cruel and unusual punishment?” The Court found in favor of the inmate David Resendez Ruiz on these two counts. However, in a third element, whether the prison system in question used excessive force, the Court found in favor of the state.
  • Miller v Alabama (2012) found that sentencing juveniles to life without parole violated the 8th Amendment.
  • Holt v Sarver (1969) ruled that states must have a set of written standards in place or be in violation of the 8th Amendment.
  • Jones v Cunningham (1963) opened this door by providing that inmates had a right to challenge their confinement and conditions through the courts. Not permitting this was a violation of several rights.

Some today decry the stiff mandatory minimums set by Congressional lawmakers in the 1980s as “cruel and unusual.” For instance, Weldon Angelos was a record producer who sold a small quantity of marijuana to Federal undercover agents and received a sentence of 55 years. How did this happen?

Gwynne (2012) describes how,

“As Judge Paul G. Cassell pointed out, Angelos got more time than he would have for hijacking an airplane (25 years), beating someone to death in a fight (13 years), or raping a 10-year-old child (11 years). Making matters worse, the father of two didn’t even have a criminal record: he was a first time-offender.

“Mandatory minimums for drug felonies involving a gun, however, stacked up to make Angelos’ weed bust a near life sentence.  Angelos never used or brandished his two weapons, but because the police said they saw them — in his center console and strapped to his ankle — he received one five-year and two consecutive 25-year sentences.”

However, Johnson v United States (2015) has largely settled the issue of mandatory minimums.

In Johnson v United States, The Supreme Court ruled 8-1 that the wording of the 1984 law, the Armed Career Criminal Act, is too vague to be Constitutional and thereby constitutes “cruel and unusual punishment.” What impact this will have on the thousands held in Federal Penitentiaries around the nation remains to be seen. According to Shen (2015), there are about 7000 inmates who could qualify for re-sentencing. Of course, Congress could respond by re-writing the law to be more specific and in line with the current ruling, but whether that will happen or not remains to be seen.

Finally, to demonstrate just how fickle judicial law is, consider the case of Pervear v Massachusetts (1866). At that time, the Supreme Court ruled that prisoners have NO Constitutional rights, not even the 8th Amendment. Naturally, this has changed considerably since then, even going too far the other direction according to some. But this case demonstrates that the nature of “cruel and unusual punishment” is ever-changing. Thus, what may seem odd now, could well seem quite the norm years from now.

In closing…

While the Constitution is silent about prisons specifically, the foundation is contained within that document for these institutions. However, the exact means by which society chooses to prevent criminals from disturbing the domestic tranquility and general welfare of the public are not given. Instead, additional principles are provided so that future generations can determine how best to handle the issue.

With this in mind, let us continue to explore how the principles of order in the Constitution can help us create the Perfect Prison…or at least, closer to perfect than what we now have. We will begin with a brief history of prisons.