Unusually Excessive & Cruel (What’s wrong with the 8th Amendment)

So you think excessive bail, exorbitant fines and cruel and unusual punishment should not be imposed? Maybe you’re right. But one man’s excessive, exorbitant, or cruel, is another’s slap on the wrist . . . or ass.

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

The concept of bail has long confused me. The way I currently understand it, you can post the full amount of the bail, with the funds returned (sans a processing fee, I’d imagine) upon your return to court. Or, you can pay 10% to a bail-bondsman who ponies up the remaining 90% so your ass can walk free until your court date. For what’s essentially a loan—and for taking the risk that you’ll Ted Cruz it to Cancun—your 10% is non-refundable.

Bounty hunters work to hunt down people who skip bail. Fun story: I once had a soft-spoken, maybe 110-pound woman tell me she worked as a headhunter. In my mind, though, I thought bounty hunter. She went on to talk about how she loved her job and was quite good at it. The mostly one-sided conversation was reminiscent of a sitcom where everything she said solidified my belief and furthered my confusion. Not until much later did I realized she wasn’t in charge of finding a criminal that skipped bail. She found the right people for job openings.

So why should excessive bail be required? It would create jobs and stimulate the economy at the behest of our alleged criminal friends. Higher bail means a juicier 10%. Once we reinstate cruel and unusual punishments (we’ll get there!), we’ll have more people posting with a bondsman, then jumping bail to forgo their eye-for-an-eye punishment. This leads to more bounty hunters in the workforce, being placed by—you guessed it—headhunters. Sure, some of these criminals will hightail it to a non-extradition country to circumvent justice, but the absence of these criminals in the U.S may decrease our crime rate in the long-term.

What’s your definition of excessive? For someone below the federal poverty level, a $50 fine can be the difference between feeding their kids for a week or them going to school hungry. On the contrary, a $20 million fine for the top fraction of the 1% does more harm to their ego than their way of life. To ensure there aren’t excessive fines to the poor, while simultaneously not inflicting a mere slap on the wrist to the rich, we’d need a system that’s income-based. How would we determine the rate of an individual’s fine—last year’s tax return? Yet another reason to cheat on our taxes.

Take, for example, the cigarette companies that were fined 100’s of billions of dollars over the course of a couple decades. For them, this was—and remains—simply the cost of doing business. Then, we have Purdue Pharma’s $8.34 billion settlement and ultimate dissolution of the company for their involvement in precipitating the opioid crisis. A huge fine, sure, but small potatoes when compared to more than $100 billion. Yet Purdue Pharma was essentially shut down by the federal government. The impact of a fine differs with the ability to absorb the financial loss.

For certain fines, a wide range, or even a completely arbitrary amount determined by a judge, can work. But for more mundane things like a traffic violation or jaywalking, a set price must be enacted and levied. In the latter cases, the financially well-off would get along as swimmingly as Philip Morris or British American Tobacco, while the every-last-penny-matters individuals are in Purdue Pharma territory.

The question becomes, do we make fines such staggering amounts that they’re literally impossible to pay by the average person, so that the rich begin to feel the pain. Or do we maintain fines that equate to a mere annoyance to the rich, while still impacting the less well-off to an absurd degree? Can we find a way to make an income-based system work?

Just as the definition of “excessive” with regard to bail and fines is open to interpretation, so, too, are the terms “cruel” and “unusual” debatable. Spanking a child seems to fit those terms today, yet we’re only a generation or so removed from it being completely normal, almost necessary. For kids today, a paddle to their butt is cruel. To a masochist, however, not cruel at all . . . unusual, perhaps, but not cruel in the least.

Pirate Code of centuries past took the temperature of the crew to determine how shares of treasure were to be distributed. In these codes, they also included a standard compensation for maimed and mutilated buccaneers suffering the loss of a limb during the voyage. (Seems bias against the lefty was alive even back then.)

“For the loss of a right arm 600 pieces of eight; left arm 500 pieces; right leg 500 pieces; left leg 400 pieces; an eye 100 pieces; a finger 100 pieces.”

If pirates could easily assign values to the human body, perhaps we can as well.

This can be extrapolated to the old eye-for-an-eye method of punishment that’s mentioned in a number of very old, very popular books. Also known as the law of retaliation, it’s the principle that a person who has injured another person is to be penalized to a similar degree by the injured party. It’s less strictly applied to mean the victim receives the estimated value of injury in compensation. Like the pirates of yore, we do this to some extent today. Financial criminals must pay back the money (eye-for-an-eye) and also go to prison (punishment). Want to decrease the crime rate? Just welcome back the Code of Hammurabi punishment—eye-for-an-eye.

So, you still think excessive bail, exorbitant fines and cruel and unusual punishment shouldn’t be imposed? The United States represents about 4.4% of the world’s population, yet houses around 22 percent of prisoners. Drastic increases in bail and fines would make both unpayable, ultimately leading to more people behind bars. Depending on your interpretation, that alone may be construed as cruel and unusual punishment. So, I guess, yeah, come to think of it . . . You’re Probably Right.

[035] March 10, 2021