Antonin Scalia says, "...it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face."

No, I'm sure Scalia is completely convinced that the Jack Bauer scenario is a viable one that needs to be diligently protected against; after all, it's not like a judge would ever have to make use of rhetoric to make a point.

If Scalia was all about Logan's Run in chambers I'd like him more!

Scalia sucks enough without distorting his comments into self-parody.

If you want a frustrating justice who is truly internally consistent, look at Clarence Thomas.

heres the Thomas dissent i was remembering, from farmer v. brennan. i read it to say that a beating while incarcerated, if not judicially imposed, is not a constitutional violation, whatever else it may be:

I adhere to my belief, expressed in Hudson and Helling v. McKinney that “judges or juries-but not jailers-impose ‘punishment.’ ” “Punishment,” from the time of the Founding through the present day, “has always meant a ‘fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him.’ ” (quoting Black's Law Dictionary; see also 2 T. Sheridan, A General Dictionary of the English Language (1780) (defining “punishment” as “any infliction imposed in vengeance of a crime”).

Conditions of confinement are not punishment in any recognized sense of the term, unless imposed as part of a sentence. As an original matter, therefore, this case would be an easy one for me: Because the unfortunate attack that befell petitioner was not part of his sentence, it did not constitute “punishment” under the Eighth Amendment.

wow that's fucking disgusting

hes just being purposely trite in a lol im on the supreme court bitches sort of way

Yeah, but isn't joking about TV precedents for your pro-torture legal thinking in front of a Western World that's overwhelmingly horrified by America's actions/policies in that regard kind of distasteful? It's not just a joke, at that point. It's an unambiguous "fuck you".

the case involved a postop tranny who was put into the genl prison population despite his protests that hed be raped and beaten. he was then promptly raped and beaten. xpost

It's an unambiguous "fuck you".

consider the source, dude

http://www.upi.com/NewsTrack/Top_News/2006/03/27/scalia_has_hand_gesture_for_critics/7854/

Christ Hunt3r, that reads like an SNL Weekend Update joke.

Okay, I'm not just playing devil's advocate here when I say that I can see some merit in Thomas's position. Judges are responsible for insuring that punishment is not cruel and unusual. Wardens (and other administrators) are responsible for the health and safety of the prison populace.

It is not the fault of the judge imposing sentence that the victim was raped and beaten. The legal punishment imposed in his case was (apparently) fair and just. The victim's criminal mistreatment is the fault of the individuals who decided to place him in the general population, and that is where blame should be placed.

Thomas's reading is narrow, but defensible.

it's certainly an episode of SVU xpost

(contenderizer OTM, btw)

orly

The victim's criminal mistreatment is the fault of the individuals who decided to place him in the general population, and that is where blame should be placed.

but of course, yes thats the basis of the suit, government action constituting cruel and unusual punishment by deliberate indifference of prison officials. thomas says they should have no liability under the legal theory that they violated his constitutional rights.

yeah I don't get it - said individuals were in the employ and acting on behalf of the gov't, ergo the gov't is responsible for their actions, actions which resulted in someone in their care being harmed.

lol supreme court justices acting like lawyers

No, I see Thomas's point. It's not that the prisoner should have no recourse against prison abuse or willful indifference to abuse by prison officials, it's that those things aren't officially part of the "punishment." The prisoner can seek recourse, just not under the theory that his right to freedom from cruel and unusual punishment has been violated.

Somehow that reminds me of KBR insisting that because a few of their female ex-employees have won settlements for sexual harassment & rape in Iraq, the "system is working."

I understand that distinction - but the gov't is ultimately still responsible for that prisoner's care and wellbeing while he is in custody. So the distinction seems moot to me.

x-post

Judges are responsible for insuring that punishment is not cruel and unusual. Wardens (and other administrators) are responsible for the health and safety of the prison populace.

if you happily make a decision ignoring the fact that x will probably happen because you claim its not yr responsibility yr in the same boat as kids who windmill there arms and say they aren't responsible when someone gets in the way.

i guess he made a good decision 'legally'. i'm as indifferent to seeing prisoners getting beat as the next guy, but i'd at least own up to not giving a shit.

the distinction is not "moot" at all because it reflects on what means the prisoner uses to seek recourse

Thomas is distinguishing between the punishment officially imposed (the sentence itself) and the actual treatment received. He's not saying that they government shouldn't be held responsible for the man's mistreatment, only that attacking the Constitutionality of the "punishment" is not a viable argument (in his opinion).

If we buy his idea that punishment = sentence and only sentence, then it's a good argument. I'm not entirely sure I agree, but it's not absurd. Should the goverment be held responsible on Constitutional grounds for every sort of mistreatment that a prisoner might be subjected to by his/her jailors?

To tell the truth, I'm not sure.

if you happily make a decision ignoring the fact that x will probably happen because you claim its not yr responsibility yr in the same boat as kids who windmill there arms and say they aren't responsible when someone gets in the way.

-- ogmor

OGOTM. Interesting question the Thomas dissent avoids (and which I imagine the court will never take up, though they should) is whether punishment can ever be proportionally appropriate to the crime if you know in advance that prisons are not fit for human habitation.

If you sentence a criminal to 5 years in jail, knowing that the system is broken, knowing that he might well be beaten and raped, and knowing that racist gangs virtually run the prison system, aren't you passively imposing a disproportionate sentence no matter what?

Should the goverment be held responsible on Constitutional grounds for every sort of mistreatment that a prisoner might be subjected to by his/her jailors?

14th Amendment...?

14th Amendment...?

But this wasn't the action of a state. I don't get your point.

Should the goverment be held responsible on Constitutional grounds for every sort of mistreatment that a prisoner might be subjected to by his/her jailors?
To tell the truth, I'm not sure.

well scotus in this case ruled that there are standards that prison officials must adhere to, basically that they can not knowingly disregard a substantial risk of serious harm to a prisoner.

shakey, are you being purposefully obtuse? Because you're basically trying to argue against our entire legal system.

well scotus in this case ruled that there are standards that prison officials must adhere to, basically that they can not knowingly disregard a substantial risk of serious harm to a prisoner.

Governments can be held liable for prison abuse. That's not in question here. The question is whether they can be held liable under "cruel and unusual punishment." Prisoner abuse is unlawful whether or not it's considered "punishment."

Prisoner abuse is unlawful whether or not it's considered "punishment."

That's the whole thing in a nutshell. It's not like there aren't any other avenues by which one could seek redress.

well scotus in this case ruled that there are standards that prison officials must adhere to, basically that they can not knowingly disregard a substantial risk of serious harm to a prisoner.

^^^ this is all I was getting at - by not providing the prisoner with the rights/protections guaranteed under the law, the jailers were violating the Equal Protection clause...?

but what do I know, I'm not a lawyer

if you deny responsibility for things you knowingly caused you are a wuss. it smacks of lack of conviction which smacks of shitty arguments. sartre knew it, any serious terrorist organization knows it, its even in a bright eyes song. if scalia really wants to argue his case for torture he's going to have to forcefully insist it's still valid in the less glorious instances we've seen, not play them down or try to discount them on a technical basis.

if scalia really wants to argue his case for torture he's going to have to forcefully insist it's still valid in the less glorious instances we've seen, not play them down or try to discount them on a technical basis.

This is demonstrably not true, see for example his current line of rhetoric.

i understand he is making a case that is persuasive, but i don't think its the strongest sort of argument he could/should make (which is what i meant with "really wants to argue his case")

HI DERE is right. Scalia & Co. have to get everybody on board and comfortable w/ the Jack Bauer scenario, maybe give it a few years to settle in, before they start trying to convince people that it's okay to electrocute the genitals of funny-looking greengrocers.

I think making any type of emotional appeal on this, ie insisting forcefully it's still valid, is a fundamentally weaker case than explaining why your decision is supported by the relevant law as it currently written.

what i'm saying is that being unable/unwilling to advocate/prove yr case in the worst/muddiest circumstances puts you in quite a weak position. you can argue on narrower ground (e.g. legal) to avoid those issues and instead present something internally consistent, which i think is what dan perry (??) is advocating, but just because yr presenting more positives and less negatives i don't think its fundamentally stronger. it wouldn't persuade me, necessarily. if you know yr right you shouldn't have to dodge to make yr case look better.

Dan Perry (!!) in this case appears to have a stronger understanding of what makes a successful legal argument than ogmor.

if the terms in which you are arguing are narrow though (i.e. all legal processes) then obviously your priority is to prove your position is consistent with those terms before you go outside them. but in terms of a general public argument showing bias to one set of criteria for justification (its consistent with the law) at the expense of others (doesn't matter that i knew this bad thing would happen), seems like a cop out.

x post - heh, well yes

(I don't disagree with you outside of a legal context but I am not sure if it makes sense to interpret the positions and arguments of Supreme Court justices outside of the legal context.)

but obviously a successful legal argument is exactly that and not the only criteria relevant to a discussion about torture or how to treat prisoners.

yeah i'm not sure about how to treat judges arguments exactly.

judges "opinions" in interviews vs judges "opinions" that are dicta vs judges "opinions" in decisions that have the force of law vs living in fantasyland as informed by television dramas: FITE

you forgot "vs judges getting a whole bunch of people who disagree with him to argue over nothing"

Dan Perry (!!) in this case appears to have a stronger understanding of what makes a successful legal argument than ogmor.

All guys named Dan have razor-sharp legal minds.

vs. jack bauer

xpost except I couldn't give a shit about any of this

And speaking of Jack Bauer. Those darn liberals!

Scalia is asked if torture is unconstitutional, specifically wrt the 8th amendment. Scalia answers quickly and effectively that torture does not necessarily constitute punishment and is therefore not covered by the 8th.

I'm not going to debate the merits of this argument, but he goes on.

Scalia then brings up up the ticking bomb scenario. This has nothing to do with his argument. A little later on he broadens his definition of the ticking bomb:

It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

Just so I'm clear, why is it not important that high-profile members of my government are publicly making the case for torture, and are using this bullshit ticking bomb scenario to justify broadening the acceptability and practice of torture?

I'm not going to debate the merits of this argument, but he goes on.

This is kind of a problem, though. You absolutely HAVE to debate the merits of this argument, otherwise you don't really have grounds on which to challenge him.

Skipping over the important bit so you can say "ARE YOU FUCKING KIDDING ME" to the ridiculous bit is maybe not the best refutation tactic, you know?

I'm going to wade into this thread later, if I can. In the meantime, as to policy (not law), I can at least see an argument for torture in the ridiculously narrow situation where there really is a known ticking time-bomb and you have the guy in custody who uniquely can tell us how to defuse it and he won't unless he's tortured. The problem is that it's almost never that clean a scenario. Virtually all of the time -- if not actually all of the time -- you're dealing with someone who isn't unique, doesn't know how to stop the ticking time-bomb, we don't know if there is a ticking time-bomb, the chances of false confessions are extraordinarily high, and we have few, if any, ways of verifying whether the information we extract via torture is useful (n.1).

And so, on the one hand, the "information" obtained via torture, if any, is -- the vast majority of the time -- dubious and useless, while on the other hand, condoning torture creates a dangerous slippery slope for our civil rights, highly incentivizes officials to be over-inclusive in terms of who to torture and how, enrages other nations around the world (and, in that way, probably helps terrorist recruiting), and causes us to lose both our credibility abroad and our dignity at home. Long story short: The price to pay is far too heavy to justify torture in all but the most extraordinary circumstances (and possibly even then, too).

__________________________________
(n.1) You can be sure, tho, that if torture actually thwarted a major terrorist plot, we'd have heard about it; this Administration isn't shy about tooting its own horn, so to speak.

lawyer Dan OTM. (probably was already stated upthread but eh)