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We all know about the tortures that took place at Abu Ghraib prison.

However, Justice Scalia explains to us that torture does not offend the US Federal Constitution.

As Justice Scalia explained to us, the Eighth Amendment says

cruel and unusual punishments [shall not be] inflicted

and torture is not punishment. In fact, as Justice Scalia explains to us, one is punished for something he/she has committed in the past. For example: "I caught my child smoking, so as a punishment I took away his mobile phone".

But "torture" is not an infliction of a damage to make the accused pay for something he/she committed in the past, or to elicit someone to refrain from committing that offense again. This is not the purpose of torture. The purpose of torture is to extort information useful for a future criminal investigation.

The explanation that Justice Scalia gave to us is consistent with the defition of punishment (remember, the Eight Amendment prohibits "cruel and unusual punishments") that BF Skinner gave to us in his operant conditioning theory:

Positive punishment: Providing a stimulus that an individual does not desire to decrease undesired behaviors. For example, a child hates to do chores. His parents will try to reduce the undesired behavior of failing a test by applying the undesired stimuli of having him do more chores around the house.

Negative punishment: Removing a stimulus that an individual desires in order to decrease undesired behaviors. For example, a child loves playing video games. His parents will try to reduce the undesired behavior of failing an exam by removing the desired stimulus of video games.

In both cases, the purpose of punishment is "to decrease undesired behaviors". The purpose of torture is not that (after all, the accused is already into custody, so he cannot committ other undesired behaviors), but to extort information useful for further prosecution or to catch other accomplices. So, also under this theory, torture is not punishment.

Moreover, as Ingraham v. Wright explains to us, the US Federal Supreme Court has "limited the application of the Eighth Amendment’s “cruel and unusual” language to criminal punishment".

A prisoner who is tortured was not subjected to criminal proceedings (in fact, the torture itself is used to extort information useful for a future criminal proceeding), let alone a criminal punishment.

  1. Is there some legal theory, or some legal scholar, that has argued that "torture" violates the Eight Amendment to the US Federal Constitution? What would be the argument of such theory or scholar?

  2. Is there any other legal argument that would make torture unconstitutional, on the basis on whatever constitutional provision?

  3. Are there federal laws prohibiting torture?

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  • Does an answer have to be specifically about the 8th ammendment and ignore the 4th, 5th, and 6th?
    – Unfair-Ban
    Nov 22 '20 at 20:00
  • @Studoku no I would be interested in whatever constitutional argument you can come up with Nov 22 '20 at 20:19
  • It's worth noting that BF Skinner was not a lawyer. He was a psycologist whose greatest achievement was having a Simpsons character named after him.
    – Unfair-Ban
    Nov 22 '20 at 22:45
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The Eighth Amendment to the United States Constitution states that "cruel and unusual punishments [shall not be] inflicted." The general principles that the United States Supreme Court relied on to decide whether or not a particular punishment was cruel and unusual were determined by Justice William Brennan. In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan dissenting wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

  1. The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity", especially torture.

The Supreme Court has held torture to be unconstitutional since its ruling in Wilkerson v. Utah in 1878. In that case, the justices wondered what part of the Constitution would forbid such a cruel and unusual punishment:

Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.

In the 2008 death-penalty case Baze v. Rees, where Chief Justice John Roberts wrote that:

"the Court has held that the Eighth Amendment forbids 'punishments of torture … and all others in the same line of unnecessary cruelty,' such as disembowling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain for the sake of pain."

18 U.S. Code § 2340A.Torture

(a)Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b)Jurisdiction.—There is jurisdiction over the activity prohibited in subsection (a) if— (1)the alleged offender is a national of the United States; or (2)the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c)Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Oliver Ravel, former deputy director of the FBI, has stated that force is not effective: "people will even admit they killed their grandmother, just to stop the beatings." Indeed, the unreliability of forced confessions was one of the principal reasons that U.S. courts originally prohibited their use.

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  • Well this answers question (3), but not question (1) or (2) Nov 22 '20 at 20:42
  • I am interested in the constitutional theories that would make a state's torture law unconstitutional Nov 22 '20 at 20:49
  • as far as I know, there is no law that allows for any type of torture whether it be at the state level or federal. Article 3 of the Convention against Torture expressly prohibits sending a person to another state "where there are substantial grounds for believing that he would be in danger of being subjected to torture." Nov 22 '20 at 21:11
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Two older applicable Supreme Court ruling are In re Kemmler, 136 U.S. 436 and Wilkerson v. Utah, 99 U.S. 130. The latter states

Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution

This is cited in Kemmler, which adds that "Punishments are cruel when they involve torture or a lingering death". That finding is presupposed in Trop v. Dulles, 356 U.S. 86 (1958), which extends the boundaries of "cruel and unusual punishment" to encompass use of denationalization as a punishment:

We believe, as did Chief Judge Clark in the court below, that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development.

There does not appear to be any case where torture was proposed as a punishment, where we could inspect the legal arguments that torture is cruel and unusual: that seems to have been legally assumed from the start.

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Although torture can be inflicted without it being considered as punishment as the OP suggests; it can also be inflicted as punishment; in these cases, the eighth amendment holds, and which says 'cruel and unusual punishments [shall not be] inflicted'. Then by analogy, we can say, it ought not to be inflicted in cases where torture is being inflicted but is not primarily about any regime of punishment.

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