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In Ingraham v. Wright, the US Federal Supreme Court ruled that it had "limited the application of the Eighth Amendment’s cruel and unusual language to criminal punishment".

Can I be subjected to a "cruel and unusual" punishment by the police, as long as it is done outside of a criminal proceeding?

For example, suppose I jaywalk. A police officer catches me.

  1. Suppose the punishment is a result of a bargain. Suppose that me and the police officer agrees that the police officer will give me a slap in the hand, and in return the police officer will not press charges against me. Can we make out such a bargain?

  2. If yes to (1), suppose that after that I change my mind and sue the officer on Eight Amendment grounds. Can the officer defend himself/herself by saying that the punishment doesn't violate the Eight Amendment because this amendment only applies to "criminal punishment" (Ingraham v. Wright) and this was not a "criminal punishment", because it was outside of a criminal proceeding? After all, charges were never pressed and so I was not convicted of any crime

  3. How does the answer to number (1) change if the punishment is imposed against my will?

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No. Police are not permitted to impose any punishment whatsoever. Their role in the American justice system is to prevent and investigate criminal offenses.

What you're describing is a punishment for a criminal offense, even though it is imposed outside the criminal justice system. The same principles that prevent an officer from punching a suspect in the face or demanding a cash payment to not write a ticket prohibit a police officer from imposing a punishment of his own design, with or without your consent.

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    In the first lines you say they can't do it and than in the next paragraph you describe things they do on a daily basis.:) They just aren't allowed to do it as punishment. They have qualified immunity for punching you in the face and civil forfeiture for taking your money. – DRF Nov 23 '20 at 9:36
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    This is why the separation of powers exist. The ones who arrest and investigate people, are not the same who write the laws, who in turn are not the same who decide about the possible punishments. – vsz Nov 23 '20 at 13:39
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    @DRF They don't technically have the right to do those things, but qualified immunity means they'll rarely be punished if they do. This is a big reason for the calls for police reform. – Barmar Nov 23 '20 at 15:39
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    @DRF His example of demanding a cash payment to not write a ticket would be soliciting a bribe; not civil forfeiture. – Michael Richardson Nov 23 '20 at 17:21
  • This is why the trial is conducted in two phases (the Argumentative Phase, where, if guilt is found, moves onto the sentancing phase.). For crimes like Jaywalking, this is right after the judge delivers a finding (or rarely for this low level offense, the jury). In much more major crimes, sentancing takes place some time after the argumentative phase. Essentially, it's first part "did you do the bad thing? Yes you did. Let's take a break and discuss what punishment should be at a later date.). – hszmv Nov 23 '20 at 18:43
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The 8th Amendment is much stronger in prohibiting types of punishment than in prohibiting disproportionate punishments. Corporal punishment such as a slap on the hand, is per se prohibited under the 8th Amendment as punishment for a criminal offense, whether or not the consent of the person upon whom it is imposed is obtained (subject to narrow exceptions like the death penalty not applicable here).

Also, a non-judicial bargain to accept a corporal punishment, or any punishment, would usually constitute a punishment imposed in violation of various 5th and 6th and 14th Amendment rights and would provide a basis for a civil rights lawsuit under § 1983 for violation of a clearly established constitutional right against the officer who did so.

It would also probably constitute a simple assault by the officer because no exception to the simple assault statute that prohibits a person from slapping another person would apply because no statute would authorize the officer to enter into or accept such a bargain.

It is a criminal matter because it is punishment for violation of a criminal or quasi-criminal statute prohibiting jay walking. An officer attempting to raise this defense would surely lose.

The officer's better defense, although not a tenable one in a world where the true facts and intent are known to be as set forth in the question, would be that the officer engaged in a reasonable use of force to apprehend the defendant and then exercised in unilateral discretion to not cite the person slapped.

Another defense that might hold up under these facts would be that the "punishment" was so de minimis that it does not justify any legal action against him and does not really amount to a "punishment" any more than a verbal warning, which is not considered to be a punishment, would.

  • The 8th amendment is effectively available only to convicts. Generally detainees/suspects subjected to punishment/mistreatment would file a procedural due process claim "punishment prior to an adjudication of guilt". In some circuits both claims are treated identically, in others the 14th amendment claim provides additional protection (e.g. for punishment that is not cruel and unusual) – David Reed Nov 24 '20 at 8:27
  • e.g. the ninth just recently switched from adopting the former perspective to the latter: govinfo.gov/content/pkg/USCOURTS-ca9-16-56005/pdf/… See top of pg. 9 paragraph beginning with "In Castro we.." – David Reed Nov 24 '20 at 8:34
  • See top of pg. 9 paragraph beginning with "In Castro we.." – David Reed Nov 24 '20 at 8:36
  • @DavidReed Strictly speaking, all Bill of right protections against state and local government actors arise under the 14th Amendment which is the basis upon which the incorporation of federal bill of rights provisions is justified. – ohwilleke Nov 24 '20 at 23:00
  • Yes. What I mean is you cannot use the 8th as incorporated by the 14th either. You cannot claim "cruel and unusual punishment". To my knowledge it is completely reserved for convicts. The corresponding claim for what would be an 8th amjendment violation for a convict is "punishment prior to an adjudication of guilt" for detainees/suspects See Bell v. Wolfish ("due process requires that a detainee may not be punished prior to conviction") – David Reed Nov 24 '20 at 23:08
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If the government are not punishing you as part of a criminal offense, then under what guise are they subjecting you to physical punishment? (Separating the "police" out of this, as it's really "the government" more broadly here.)

If they subject you to physical punishment not part of a criminal proceeding, and in a venue not otherwise covered by due process, then they are violating your civil rights - see the 14th Amendment:

nor shall any State deprive any person of life, liberty, or property, without due process of law

In the cited case, this "due process" was covered in Florida law by explicitly prohibiting excessive use of force, and thus the victims could and should apply for protection under those statutes (and more generally, under the standards of tort law). (I assume they did and did not receive a satisfactory outcome, but can't find the case trivially).


I will note that I wonder if this case would have a different outcome now; note (from the Oyez summary):

While acknowledging the general abandonment of corporal punishment as a means of punishing criminals, Justice Powell looked to the common law history of similar punishment in schools and discerned no trend towards its elimination. Rather, common law suggested that teachers could legally impose reasonable, non-excessive force on their students.

That's certainly no longer the case, and so (politics aside) it's possible this specifically would have a different outcome. Schools are somewhat of a special case, acting in loco parentis, which was generally the rationale behind the use of corporal punishment - parents also during that period of time typically used corporal punishment; even now, the majority of (U.S.) General Social Survey respondents believe spanking is sometimes appropriate, though most likely the majority don't use it as a matter of course, and the majority of states explicitly prohibit it in schools. So perhaps the "common law" rationale might not apply; but either way, it's likely a special case that schools are permitted to act in this way, and would not apply more broadly.

  • The exception you note for use of force by teachers is still on the books and legal in most places. But, it isn't applicable in the OP case because there is no special relationship between the officer and the jay walker. – ohwilleke Nov 23 '20 at 20:27
  • @ohwilleke From what I read, 31 states prohibit corporal punishment in schools. – Joe Nov 23 '20 at 20:28
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    Which means that 19 states permit it and further that it is not unconstitutional to do so. Also, I suspect that the ban in the 31 states is not absolute in every one of those states (e.g. being limited to public schools). Parents likewise almost universally can impose corporal punishment. – ohwilleke Nov 23 '20 at 20:29
  • Public schools would seem to be the purview of this question [e.g., governmentally sanctioned punishments]; and 19 is not a majority of 50. It doesn't really matter much, in any event, just a side thought on my part. – Joe Nov 23 '20 at 20:52
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In the first place, the police cannot legally impose any punishment, that is the prerogative of the judicial branch and the people. They can decline to arrest, but any physical compensation could be considered bribery which would make both of you guilt of a much more serious crime than jaywalking.

So, to answer your first question, you cannot enter into such an agreement legally because the officer would be guilty of accepting a bribe and you would be guilty of paying a bribe.

Secondly, if you did enter into such an illegal agreement, in order to have 8th amendment grounds, the officer would have to be acting per policy not simply as an individual actor. Since as an individual actor the officer doesn’t have any right to inflict punishment, any such “punishment”, would have to be considered either (a) bribery, (b) consensual behavior between adults, (c) assault.

How it got treated would depend upon the exact circumstances, but it wouldn’t be considered a violation of your rights under the 8th.

If it was official policy, then it would more likely fall afoul of the 5th.

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Can they? yes Should they? no But some police are corrupt and will take bribes or do other illegal things.

  • This answer does not really address the legal question. – Ryan M Nov 24 '20 at 12:23

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