Another Stab at the U.S. Constitution

Another Stab at the U.S. Constitution

  Revisiting the Constitution: Clarify What's Cruel and Unusual Punishment

By Rachel E. Barkow

 

 "We are a nation dedicated to liberty and equality. So it is a particularly tragic irony that America leads the world in imprisonment and that a large proportion of those serving sentences are people of color.

     Sometimes prison sentences -- even the most severe -- are a rational response to crime. But often, sentences are the product of a political process in which politicians are scared of appearing soft on crime so they do not even question the reasonableness of a proposed criminal law. It is the norm, not the exception, for politicians to reflexively push for harsher sentences without considering empirical evidence about what level of sanction is necessary for deterrence or what impact a sentence will have on communities. It is an environment long on rhetoric and short on reflection.

     The Constitution has failed to check this pathological process. The Eighth Amendment bans "cruel and unusual punishments." But some justices do not think this bans excessive prison terms. And the requirement that a sentence be "unusual" has meant that the justices often do little more than count up states with similar sentences without looking at how states reached those outcomes.

     As I have suggested elsewhere, clarifying and expanding the Eighth Amendment could help. It should specifically state that excessive terms of incarceration are prohibited, just as it bans excessive fines. It should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge. And it should insist that legislatures create a record showing that they considered empirical evidence about the law's likely impact.

     These reforms may or may not stem the tide of mass incarceration. It depends on the empirical evidence and individual cases. But they would promote the kind of reflection that a nation committed to liberty and equality should demand before locking people away."



     Rachel E. Barkow explains how unfair many crimes are sentenced to an unreasonable amount of time. Many judges and prosecutors overlook the Eighth Amendment because they feel that a crime is a crime and it must be resolved by an excessive amount of time in prison. Rachel expresses and insists that if legislatures do decide to sentence an excessive amount of time in prison, that they first consider the Eighth Amendment before making their final decision. Sentencing someone an unreasonable amount of time in prison simply because of their race is against the law but for some reason it's usually those of color who are incarcerated for a long time. Treating everyone in any and every community equally, brings a positive outcome, which should be taken into consideration in any situation that may occur.

     I agree with Rachel that many people are being incarcerated for an excessively long time simply because of the color of their skin. There are people who have done the same or worse crimes who are sentenced less time than others. I always asked myself how does anyone decide the amount of years a criminal will spend in prison. I now have a better understanding of the matter and realize how unfair and inconsiderate the judge or legislation can be. If laws must be followed by the citizens of its country, so shall the government with the amendments.